† Hon. John W. Lungstrum, Chief District Judge of th e United States

District Court for the District of Kansas, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 6 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL SHANE JACKSON,

Petitioner - Appellant,

v. CHARLES RAY, Warden, Davis Correctional Facility,

Respondent - Appellee. No. 03-6053

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. CIV-01-1778-C)

Submitted on the briefs: W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, Oklahoma , for the RespondentAppellee. Thomas D. McCormick, Oklahoma City, Oklahoma, for t he Petitioner-Appellant.

Before TACHA , Chief Circuit Judge, BRISCOE , Circuit Judge, and LUNGSTRUM , Chief District Judge. †-2-

TACHA , Chief Circuit Judge.

Petitioner-Appellant Michael Shane Jackson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, allegin g that a four and one-thirdyear delay between the filing of the information ag ainst him and his trial violated his Sixth Amendment right to a speedy trial. The D istrict Court denied Mr. Jackson’s petition for failing to establish prejudi ce. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND The State of Oklahoma incarcerated Mr. Jackson on arobbery conviction on September 12, 1995. Two weeks later, on Septemb er 27, 1995, the State issued an information and arrest warrant against Mr . Jackson, charging him with selling LSD. In February 1998, he was released fro m his robbery conviction on probation. While on probation, Mr. Jackson was enr olled in community college and employed. The State took no action to enforce the LSD information during Mr. Jackson’s incarceration for the robbery conviction. Rather, on April 13, 1998, approximately two months after his release on probation, the State executed the 1995 LSD arrest warrant. Because Mr. Jackson couldnot pay bond, he was held in pretrial detention from April 1998 until January 24, 2000, the date of his trial. During this time, Mr. Jackson’s trial was continuednumerous times. As the-3-

State now concedes, the record offers no explanatio n for these continuances, nor does it reveal who requested them. On May 18, 1999 , Mr. Jackson filed a pro se motion in which he asserted, among other things, hi s Sixth Amendment right to a speedy trial. The State trial court did not addres s this motion until the day of trial, more than eight months after its filing. Atthat time, the court denied the motion, stating, “while I understand that [Mr. Jack son] feels that there are some fairness issues, . . . those are not legal issues, they do not have legal merit.” At trial, Mr. Jackson presented an entrapment defen se, claiming that Jason Brown, a police informant, entrapped him. Mr. Brow n, however, committed suicide in 1997, well before Mr. Jackson knew of th e pending drug trafficking information. In lieu of Mr. Brown’s testimony, Mr. Jackson himself testified that Mr. Brown entrapped him. During the course of this testimony, Mr. Jackson also stated that he was a drug addict at the time he sol d the LSD. The state court properly instructed the jury that, if Mr. Jackson w as ready and willing to sell LSD despite Mr. Brown’s actions, then Mr. Jackson’s entrapment defense should fail. The jury entered a verdict against Mr. Jackson, and the state trial court sentenced him to a prison term of twenty-one years. Mr. Jackson appealed to the Oklahoma Court of Crimi nal Appeals (“OCCA”), raising, inter alia, the speedy trial cla im. Over the vigorous dissent of Judge Chapel, the OCCA summarily dismissed the spee dy trial claim. Mr.-4-

Jackson then sought habeas relief from the federal courts. His petition was referred to a federal Magistrate Judge who found th e OCCA majority opinion factually incorrect and legally erroneous. Nevertheless, the Magistrate Judge recommended denial of habeas relief after finding t hat Mr. Jackson’s defense was not prejudiced by the delay. Similarly, the Distri ct Court, rehearing the habeas claim de novo, held that Mr. Jackson’s defense was not prejudiced by the delay because the substance of Mr. Brown’s potential test imony was speculative. We granted Mr. Jackson a certificate of appealabili ty on his speedy trial claim pursuant to 28 U.S.C. § 2253(c) . Mr. Jackson filed a pro se brief in this Court. We then appointed counsel for Mr. Jackson. After receiving the parties’ briefs, we ordered the case to oral argument and re quested additional briefing regarding the Supreme Court’s opinion in Doggett v. United States , 505 U.S. 647 (1992). We acquiesced to the parties’ joint reques t and unanimously determined to submit this case without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
II. STANDARD OF REVIEW In habeas cases, we review the federal district cou rt’s legal conclusions de novo, applying the same review of the state court d ecision as the district court.
Morris v. Burnett , 319 F.3d 1254, 1268 (10th Cir. 2003). We conductan independent review of the state record as well. Id. If, however, the district court1 We note that the Supreme Court published its decis ion in Wiggins after

the completion of Mr. Jackson’s OCCA appeal. AEDPA“limit[s] our analysis to the law as it was clearly established by [Supreme C ourt] precedents at the time of the state court decision .” Wiggins , 539 U.S. at 520 (internal quotations omitted) (continued...) -5- made any independent factual findings outside the s tate record, we review those findings for clear error. Id. The Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”), Pub. L. 104-32, 110 Stat. 1214, governs this case. Pursuant to AEDPA, we must defer to a state court decision adjudicated on the merits unless that decision: (1) “was contrary to, or involved an unreasonable appli cation of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the f acts in light of the evidence presented at the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Because the OCCA identified the appropriate legal p rinciples in determining whether Mr. Jackson was denied his right to a speedy trial, our review is limited to whether the OCCA unreasonably applied those principles. “[T]he ‘unreasonable application’ prong of § 2254(d )(1) permits a federal habeas court to grant the writ if the state court identifi es the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith , 539 U.S. 510, 520 (2003) (internal quotations omitted). 1 A state court decision does not satisfy this1 (...continued)

(emphasis added). We cite Wiggins , however, not as an example of clearly established law relating to the substance of the sp eedy trial claim, but for guidance on the proper standards to apply on habeas review under AEDPA. See id. at 522 (holding that a habeas court can cite Suprem e Court precedent issued after the relevant state court decision so long as it “made no new law in resolving” the underlying claim). -6- standard if it is merely “ incorrect or erroneous. The state court’s application must have been objectively unreasonable.” Id. at 520-21 (internal citation omitted). In conducting an AEDPA analysis, we focus on the state court’s decision, not its rationale. Aycox v. Lytle , 196 F.3d 1174, 1177 (10th Cir. 1999). Our review , then, consists of whether the OCCA’s denial of Mr. Jackson’s speedy trial claim is objectively unreasonable in light of clearly est ablished Supreme Court precedent. While we focus on the OCCA’s decision, we may nonet heless look to the OCCA’s rationale to inform our review of the decisi on itself. In Wiggins , the Court considered whether Maryland’s highest court u nreasonably applied Strickland v. Washington , 466 U.S. 668 (1984), to defendant’s ineffective assistance of counsel claim. 539 U.S. at 521. The Court, in conducting its unreasonable-application analysis, reviewed both pr ongs of the ineffective assistance test to determine whether the state court’s finding on each was contrary to clearly established Supreme Court law, id . at 526-27, 535-36, or based upon facts that were clearly and convincingly erroneous in light of the state court-7-

record, id. at 528 . Following Wiggins , we conduct a similar review here. The Court, in Barker v. Wingo , 407 U.S. 514 (1972) , provides a four-part balancing tes t for speedy trial claims, which we discuss in more detai l below. Because the OCCA’s decision ultimately results from the balancing of t hese four factors, we cannot decide whether the OCCA’s decision was objectively unreasonable without considering the relevant factors and the balancing of these factors. Therefore, we review the OCCA’s finding on each of these four fac tors for the limited purpose of determining whether any finding is contrary to c learly established Supreme Court precedent or based upon facts that are clearl y and convincingly erroneous in light of the state court record. Because speedy tr ial claims are subject to a balancing test, the fact that the OCCA may have mad e a finding on one or more of the factors contrary to clearly established Supreme Court precedent is insufficient to grant habeas relief. Habeas relief is only avai lable if there is no possible balancing of the factors that both supports the OCC A’s decision and is not contrary to clearly established Supreme Court prece dent.
III. DISCUSSION Mr. Jackson argues that the four and one-third-yeardelay between the filing of the information against him and his date of conv iction constitutes a violation of his Sixth Amendment right to a speedy trial. The S ixth Amendment to the-8-

Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . tri al . . . .” The Fourteenth Amendment incorporates the right to a speedy trial against the states. Klopfer v. North Carolina , 386 U.S. 213, 223-24 (1967). The OCCA, in dismissing Mr. Jackson’s speedy trial claim, reasoned in full: [W]e find that Appellant has not shown how he was p rejudiced by the delays, nor did the record reflect that any prejudi ce resulted. Stohler v. State , 751 P.2d 1087, 1089 (Okla. Ct. Crim. App. 1988). Furthermore, Appellant has not shown that he timely and sufficiently raised the issue at trial nor has he shown that the reasons for the delay were solely attributable to the State. Jackson, F-2000-387, at 2. The OCCA cited Stohler , which refers to the Barker v. Wingo , 407 U.S. 514 (1972) , test; hence it identified the appropriate legal principles for adjudicating this claim. The Supreme Court, in Barker , established the analysis for Sixth Amendment speedy trial cases. A Sixth Amendment speedy trial claim is assessed by balancing: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant. Id. at 530. None of these factors, taken by itself, i s “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related fa ctors and must be considered2 In Barker , the Court characterized the right to a speedy tri al as “a more

vague concept than other procedural rights,” which it approaches “on an ad hoc basis.” Barker , 407 U.S. at 521, 530. Later rulings by the Court, however, clearly establish that the four Barkerfactors are the definitive factors when considering a speedy trial claim. See, e.g. , Doggett v. United States , 505 U.S. 647, 651 (1992); United States v. Loud Hawk, 474 U.S. 302, 313-14 (1986); United States v. MacDonald, 435 U.S. 850, 858 (1978). Indeed, since Barker , the Court has never considered any other factor. In us ing the phrases “ad hoc” and “[n]either necessary [n]or sufficient” the BarkerCourt merely emphasized that in a particularly egregious case a defendant does not need to satisfy all four factors. See, e.g., Moore v. Arizona , 414 U.S. 25, 27 (1973) (“Barker v. Wingo expressl y rejected the notion that an affirmative demonstrati on of prejudice was necessary to prove a denial of the constitutional right to a speedy trial[.]”). -9- together with such other circumstances as may be re levant.” Id. at 533. 2 A. Length of Delay The first factor of the Barker test—length of the delay—is actually a dual inquiry. First, as a threshold matter, only if the delay is “presumptively prejudicial” need we inquire into the remaining Barker factors. Barker , 407 U.S. at 530. Second, “[i]f the accused makes this showi ng, the court must then consider, as one factor among several, the extent t o which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett , 505 U.S. at 652. In examining the first prong of the delay factor, t he Supreme Court has stated that “[d]epending on the nature of the charg es, the lower courts have generally found postaccusation delay ‘presumptivelyprejudicial’ at least as it approaches one year.” Doggett , 505 U.S. at 652 n.1. The general rule is that the-10-

speedy trial right attaches when the defendant is a rrested or indicted, whichever comes first. United States v. Marion , 404 U.S. 307, 320-21 (1971). Here, the State filed its information, the function al equivalent of an indictment, four and one-third years before bringing Mr. Jacks on to trial. The Magistrate Judge found, and we agree, that the four and one-third-year delay is clearly sufficient to require consideration of the remaining Barker factors. See Doggett , 505 U.S. at 652. The State agrees as well, stati ng that “the time to measure ‘postaccusation delay’ in this case began t o run on the date the information was issued, September 27, 1995.” Moreover, in considering the second part of the del ay inquiry, we note a four and one-third-year delay far exceeds the “bare minimum” for “judicial examination of the claim.” Doggett , 505 U.S. at 652. We therefore agree with the Magistrate Judge and weigh the delay factor in favor of Mr. Jackson. B. Reason for the Delay The reason for the delay is the second prong in the Barker analysis. Barker , 407 U.S. at 530. The Supreme Court places the bu rden on the state to provide an inculpable explanation for delays in speedy trial claims. Id

. at 531 (focusing its evaluation of the delay on “the reaso n the government assigns to3 Although we have yet to observe this in a published opinion, every circuit

court to address the question has held that Barkerplaces the burden to explain the delay on the State. See, e.g., McNeely v. Blanas , 336 F.3d 822, 827 (9th Cir. 2003); United States v. Brown , 169 F.3d 344, 349 (6th Cir. 1999); Jones v. Morris , 590 F.2d 684, 686 (7th Cir. 1979); Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir. 1975); Georgiadis v. Superintendent, Eastern Correctional Facility , 450 F. Supp. 975, 980 (S.D.N.Y.), aff’d, 591 F.2d 1330 (2d Cir. 1978). -11- justify the delay”). 3 In this case, neither the State, Mr. Jackson, northe record itself offers explanations for the delays; but the OCCA concluded that Mr. Jackson bore the burden and weighed the second Barker factor against him. Jackson , F-2000-387, at 2. Placing the burden on Mr. Jack son, however, is directly contrary to Barker . The OCCA therefore applied this Barker factor in an objectively unreasonable manner. See Wiggins , 539 U.S. at 521. The State, not Mr. Jackson, has the burden to show that the delay is justifiable. Moreover, when the petitioner does not argue that t he state deliberately delayed his trial and the state does not argue thatthe petitioner caused the delay – as occurs in this case – courts must conclude negli gence on the part of the government and weigh the second Barker factor moderately against the state. See Doggett , 505 U.S. at 656-57; Barker , 407 U.S. at 531, 533-34; Strunk v. United
States , 412 U.S. 434, 436 (1973). The State concedes thi s point. “[I]t is clear that when no such justification [for the delay] is offered that the factor is weighed in favor of the defendant and against the State.” Finally, we note that the State’s negligence is not mitigated by the fact that Mr. Ja ckson was incarcerated on a-12-

previous charge for a portion of the delay. See Dickey v. Florida , 398 U.S. 30, 36 (1970) (finding a Sixth Amendment speedy trial viol ation notwithstanding the State’s argument that petitioner was in federal and state custody during the entire delay); Smith v. Hooey , 393 U.S. 374, 377 (1969) (there exists a constitu tional duty to try defendants on pending charges regardles s of whether they are in federal custody on unrelated charges). Clearly established Supreme Court precedent, then, requires finding that the State was negligent in bringing Mr. Jackson to tria l and that this negligence causes the second Barker factor to be weighed against the State. Moreover, “the weight we assign to official negligence compounds o ver time as the presumption of evidentiary prejudice grows. Thus, our tolerati on of such negligence varies inversely with its protractedness.” Doggett , 505 U.S. at 657. Given the duration of the delay in this case—four and one-third times longer than the “presumptively prejudicial” period—clearly established Supreme Cou rt precedent requires that this Barker factor weighs even more heavily against the State than would occur under a shorter negligent-delay scenario. C. Assertion of the Speedy Trial Right Because Mr. Jackson asserted his speedy trial claim before the state trial court, the third Barker factor—whether the right to a speedy trial was ass erted at trial—weighs against the State. The OCCA found that Mr. Jackson “ha[d] not-13-

shown that he timely and sufficiently raised the [s peedy trial] issue at trial.” Jackson, F-2000-387, at 2; but see id. at 3 (Chapel, J., dissenting) (“[H]e timely asserted his right to a speedy trial.”). Although federal courts presume that a state court’s factual findings are correct unless r ebutted by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), we agree with the Magistrate Judge that the state court record clearly and convincingly establi shes that: (1) Mr. Jackson filed a pro se motion asserting his right to a speedy tri al on May 18, 1999, which is in the state court record and date stamped by the Okla homa trial court; and (2) the state trial court considered and denied the motion on January 24, 2000, before conducting voir dire.
In Wiggins , the Court faced a similar issue. There, the Supr eme Court granted a writ of habeas corpus in part because the state appellate court relied on a key factual finding that was clearly contradicted by the state court record. 539 U.S. at 528 (finding that “the [Maryland] court bas ed its conclusion, in part, on a clear factual error [which was] . . . , shown to be incorrect by ‘clear and convincing evidence’” solely upon an examination of the state court record). Similarly, the OCCA’s finding that Mr. Jackson fail ed to assert his Sixth Amendment right at trial is rebutted by clear and c onvincing evidence found in the state court record. See 28 U.S.C. § 2254(d)(2). Because clear and convinc ing evidence in the state court record establishes thatMr. Jackson timely asserted his-14-

right to a speedy trial in the Oklahoma trial court , we must weigh this factor against the State. We recognize that, in general, the sooner a crimina l defendant raises the speedy trial issue, the more weight this factor lends to his claim. See Barker , 407 U.S. at 534-35. We will not fault a defendant, how ever, for failing to assert his speedy trial right before learning of the pending i nformation or indictment against him. See Doggett , 505 U.S. at 654. Here, Mr. Jackson, appearing pr o se, asserted his speedy trial rights on May 6, 1999, approximate ly five months after the first continuance of his trial date and some eight months prior to trial. The Magistrate Judge found, and we agree, that “[t]here is no evid ence that [Mr. Jackson] knew about the arrest warrant prior to its execution. L ikewise, there is no evidence that any subsequent action, or inaction, by [Mr. Jackson ] was contrary to his May, 1999, assertion of his right to a speedy trial.” H ence, Mr. Jackson timely filed his motion. D. Prejudice The OCCA held that Mr. Jackson “has not shown how he was prejudiced by the delays, nor did the record reflect that any pre judice resulted.” Jackson, F2000-387, at 2; but see id. at 5 (Chapel, J., dissenting) (“Brown’s testimony would have been highly relevant to Jackson’s claim on entrapment. Jackson’s defense was impaired by the delay.”). This fourth Barker factor, whether the-15-

delay prejudiced the petitioner, can be met in two ways: with or without a particularized showing of prejudice. We address th ese mechanisms of establishing prejudice in turn.

1. Without a Particularized Showing of Prejudice In cases of extreme delay, criminal defendants need not present specific evidence of prejudice. Instead, they may rely on t he presumption of prejudice created by the delay. Doggett, 505 U.S. at 655. Here, Mr. Jackson argues that the state’s culpability for, and the length of, the fou r and one-third-year delay places this case within the ambit of the Doggettrule. We disagree.
In Doggett, the Court held that a delay of eight and one-half y ears, of which the government was responsible for approximat ely six years, relieved the defendant of the need to make a particularized show ing of prejudice. Id. at 657. The Court held that “[w]hen the Government’s neglig ence thus causes delay six times as long as that generally sufficient to trigg er judicial review [i.e., six years], and when the presumption of prejudice, albeit unspe cified, is neither extenuated as by the defendant’s acquiescence, nor persuasivel y rebutted, the defendant is entitled to relief.” Id . at 658. Here, because the delay is less than sixyears, clearly established Supreme Court law does not requ ire application of the Doggett4 Doggettdoes not definitively determine whether a delay of less than six years will ever relieve a defendant of the need to make a particularized showing of prejudice. Other circuits, when applying Doggettin cases involving delays of less than six years, have more clearly defined the minimum amount of delay necessary to relieve a defendant of the need to mak e a particularized showing of prejudice. See, e.g., United States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir. 2002) (holding that a delay of five years and three months was presumptively prejudicial); United States v. Serna-Villarreal , 352 F.3d 225, 231-33 (5th Cir. 2003) (concluding that a three-year delay caused by governmental negligence did not require dismissal of the indictment). We, how ever, have yet to apply Doggett ’s particularized-showing rule on direct appeal. C onsequently, we have not decided whether a delay shorter than six years can relieve a defendant of the need to make a particularized showing of prejudice. Because we are currently considering this question in the context of habeas review, our inquiry is limited to determining whether this delay is contrary to clear ly established Supreme Court precedent. We, therefore, leave open the question whether a delay of less than six years can relieve a defendant of the need to make aparticularized showing of prejudice until we have an opportunity to consider it on direct appeal. -16- rule. 4 2. Particularized Showing of Prejudice We assess whether Mr. Jackson has made a particular ized showing of prejudice by considering the three interests that “ the speedy trial right was designed to protect”: (1) prevention of oppressive pretrial incarceration, (2) minimization of the accused’s anxiety and concern, and (3) minimization of the possibility that a delay will hinder the defense. Barker , 407 U.S. at 532. Impairment of the defense is the most important int erest. Id. Because the seriousness of a post-accusation delay worsens whenthe wait is accompanied by pretrial incarceration, oppressive pretrial incarce ration is the second most-17-

important factor. See id. at 533 (noting serious disadvantages caused by pre trial incarceration). The burden of showing all types of prejudice lies with the individual claiming the violation and the mere “pos sibility of prejudice is not sufficient to support [the] position that . . . spe edy trial rights [are] violated.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986). Here, even though we construe Mr. Jackson’s pro se briefing liberally, Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), Mr. Jackson d id not raise the issues of oppressive pretrial detention a nd increased anxiety below. As the Magistrate Judge stated, “Petitioner notes, und er Barker , the third interest — a defense unhampered by delay — is the most importantinterest . . . . Petitioner’s argument addresses only this element of prejudice.” Our inquiry, then, is limited to the third interest under Barker , prejudice to the defense. See United States v.
Cervini , 379 F.3d 987, 994 n.5 (10th Cir. 2004). Mr. Jackson argues that the OCCA’s decision finding his defense not impaired was objectively unreasonable, because his key witness, Mr. Brown, died before he knew about the pending information agains t him. Mr. Jackson argues that Mr. Brown’s death constitutes obvious prejudic e. See Barker , 407 U.S. at 532 (“If witnesses die or disappear during a delay, the prejudice is obvious.”); see also Moore v. Arizona , 414 U.S. 25, 27 n.2 (1973) (quoting Barker ). To the extent that Mr. Jackson advocates a per se rule that the death of a witness during-18-

delay impairs the defense, we agree with the Distri ct Court and reject this argument as inconsistent with Barker itself, see 407 U.S. at 532-33, and unsupported by any lower court rulings applying Barker

. On the other hand, the question is much closer as t o whether the unique circumstances of this case caused Mr. Brown’s death to impair Mr. Jackson’s defense. In arguing that the unavailability of a w itness impaired the defense, a defendant must “state[] with particularity what exc ulpatory testimony would have been offered.” United States v. Tranakos , 911 F.2d 1422, 1429 (10th Cir. 1990) (internal quotations, citations, and alterations om itted). The defendant must also present evidence that the delay caused the witness’ s unavailability. Gutierrez v. Moriarty , 922 F.2d 1464, 1472 (10th Cir. 1991). Mr. Jackso n satisfies both of these criteria. Despite the State’s contention that Mr. Jackson’s r ecounting of Mr. Brown’s testimony is speculative, see Perez v. Sullivan , 793 F.2d 249, 257 (10th Cir. 1986) (“Speculative allegations of injury are unpersuasiv e.”), we find that Mr. Jackson set forth Mr. Brown’s probable testimony with sufficient clarity and particularity to support his prejudice claim, see Tranakos , 911 F.2d at 1429. The State relies on three cases to support its position : Tranakos , 911 F.2d at 1429, United States v. Schlei , 122 F.3d 944, 988 (11th Cir. 1997), and United States v. Neal , 27 F.3d 1035, 1043 (5th Cir. 1994). Although the unavailable witness died-19-

during the delay in all three cases, in every insta nce the accused knew of the pending indictment before the witness died but tookno steps to preserve testimony. Id . The courts in those cases based their holdings i n large part on the fact that a defendant must take steps, when possibl e, to preserve testimony. See,
e.g. , Neal , 27 F.3d at 1043 (“Moreover, [the defendant] has n ot explained why neither he nor his attorney took steps to preserve the witnesses’ testimony for trial.”). Here, however, Mr. Brown died before Mr. Jackson even learned of the pending LSD information. Mr. Jackson was not, ther efore, on notice of the need to preserve testimony, nor did he have a realistic opportunity to do so. Given this key distinction, we find the State’s “sp eculative argument” misplaced. Initially, we note that the State does not contest that Mr. Brown was in fact a police informant who associated with Mr. Jackson. Thus, there is no allegation that Mr. Jackson is merely conjuring up potential witnesses. Also, in the context of an entrapment defense, which general ly involves only the alleged entrapper and the accused, if the defendant learns of the indictment after the death of the “entrapping” witness, the proffered testimony will necessarily be speculative in the sense the State urges. If we ad opted the State’s rule, we would essentially foreclose speedy trial relief to every defendant who learns of the indictment after a witness—who is the sole source o f the relevant testimony—dies, even if this situation arises throu gh no fault of the defendant.5 The record merely states that Mr. Brown passed in 1997. Thus, he died

from one and one-half to two and one-half years aft er the information was filed against Mr. Jackson. -20- Thus, while we continue to adhere to our general ru le against speculative allegations of prejudice, see Perez , 793 F.2d at 257, we find Perezinapplicable to the unique factual scenario presented here. See also Jackson, F-2000-387, at 4 (Chapel, J., dissenting) (“Despite the State’s sugg estion that Jackson’s claim is equally speculative, the record amply shows what Ja ckson believed Brown would have testified about.”). Second, we find that the unavailability of Mr. Brow n resulted directly from the delay. See Gutierrez , 922 F.2d at 1472. When a key witness dies within a year of the indictment (the time after which a spee dy trial inquiry is triggered), the delay does not impair the defense because the w itness would not have been available for trial even if the proceedings had occ urred in a timely manner. See, e.g., Hakeem v. Beyer , 990 F.2d 750, 763 (3d Cir. 1993) (finding no defens e impairment when a witness “died four months after [ the defendant’s] arrest, [because] the delay had [not] progressed to the poi nt at which any speedy trial inquiry would have been triggered”). Here, however , Mr. Brown died at least one and one-half years after the State entered the info rmation against Mr. Jackson. 5 Thus, Mr. Jackson could have used Mr. Brown’s testi mony if his trial had proceeded in a timely manner.-21-

We must also consider factors that weigh againsta finding that the delay impaired Mr. Jackson’s defense. First, the jury he ard the substance of Mr. Brown’s probable testimony at trial as recounted byMr. Jackson. Cf. United
States v. Gomez , 67 F.3d 1515, 1522-23 (10th Cir. 1995) (finding n o prejudice because the substance of the unavailable witness’s testimony was available in a transcript from a previous trial). Second, had Mr. Brown testified in the manner suggested by Mr. Jackson and had the jury heard tes timony that Mr. Jackson was a drug addict at the time, a reasonable jury could st ill have rejected the entrapment defense. Under Oklahoma law, “[e]ven if induced to commit the crime, [Mr. Jackson] may not avail himself of the [entrapment] defense if he otherwise [was] predisposed to commit it.” Carney v. State , 679 P.2d 1303, 1304 (Okla. Ct. Crim. App. 1984). While Mr. Brown’s testimony, as hypoth esized by Mr. Jackson, would have shown inducement, it would have left ope n the question of whether Mr. Jackson was predisposed to traffic in LSD. Mr. Jackson, however, testified that, at the time of the incident: (1) he was a dru g addict; (2) he wanted to secure drugs for his personal use; and (3) he was motivate d to sell LSD by the prospect of getting free LSD in return. Given this testimony, a reasonable jury could have found Mr. Jackson predisposed to traffic in LSD andrejected his entrapment6 The record, however, does not reveal whether Mr. Br own would have

testified that Mr. Jackson was a drug addict or if Mr. Jackson would have made this admission on the stand if Mr. Brown had testif ied. This ambiguity is especially vexing given that under Oklahoma law the State has the burden to prove beyond a reasonable doubt that no entrapment occurred. See Okla. Unif. Jury Instr. - Crim. § 8-26; McInturff v. State , 554 P.2d 837, 839-40 (Okla. Ct. Crim. App. 1976). We assume, however, that Mr. Jac kson’s status as a drug addict would have been presented to the jury even i f Mr. Brown had testified because Mr. Jackson does not argue that the drug-ad diction testimony would not have been given if Mr. Brown had testified. -22- defense. 6 These competing factors leave us in doubt as to whe ther the delay, in fact, impaired Mr. Jackson’s defense. Our doubt, however , is not determinative here. Under AEDPA, we may only make a finding that differ s from the OCCA’s if the OCCA’s finding was contrary to clearly established Supreme Court precedent. Here, clearly established Supreme Court precedent d oes not preclude a finding by the OCCA that Mr. Jackson failed to establish an impairment to his defense. E. Balancing Speedy trial claims require applying a balancing te st. Because we focus on the OCCA’s decision and not its reasoning, see Aycox , 196 F.3d at 1177, the fact that the OCCA has made findings regarding the Barkerfactors that are contrary to clearly established Supreme Court precedent is insu fficient to grant habeas relief. Habeas relief is only available if there is no poss ible balancing of the factors that both supports the OCCA’s ultimate decision and is n ot contrary to clearly-23-

established Supreme Court precedent. Hence, we tur n to the balancing of the Barkerfactors to determine whether the OCCA’s overall de cision was objectively unreasonable. First, clearly established Supreme Court law requir es that a delay of four and one-third years both triggers the remaining Barkeranalysis and weighs against the State. See Doggett , 505 U.S. at 652. Next, clearly established Supreme Court law requires that an unexplained, fou r and one-third-year delay weighs against the State even more heavily than a s horter negligent delay. See id. at 656-57; Barker , 407 U.S. at 531, 533-34 . Third, the state court record clearly and convincingly establishes that Mr. Jackson raise d the speedy trial claim before the state trial court. See 28 U.S.C. § 2254(d)(2) . Hence, clearly established Supreme Court law requires this factor to weigh aga inst the State. See Doggett , 505 U.S. at 654. On the other side of the scales, we cannot say, pursuant to clearly established Supreme Court law, that Mr. Jac kson’s defense was hindered as a result of the delay. In order to grant habeas relief, then, we must find pursuant to clearly established Supreme Court law t hat there is no possible balancing of these factors that is consistent with the OCCA’s decision. There is no such clearly established Supreme Court law supporting Mr. Jackson’s claim for relief. While the Court has he ld that “a showing of prejudice to the defense at trial [is not] essential to estab lish a federal speedy trial claim[ in-24-

every case,]” Moore , 414 U.S. at 25, Mr. Jackson fails to establish any grounds for us to find prejudice as to any other protected interest. This is not to say, however, that every case necessarily requires a fin ding of prejudice. See id. at 27. But we have held that “[w]hile prejudice is not ess ential to a violation, there is . . . reluctance to find a speedy trial deprivation whe re there is no prejudice.” United States v. Brown , 600 F.2d 248, 254 (10th Cir. 1979). Most importa ntly, there is no clearly established Supreme Court law m andating a balancing that reaches a result contrary to the OCCA’s decision. Therefore, we cannot conclude that the OCCA’s decision to deny Mr. Jackson’s Sixth Amendment claim is objectively unreasonable in light of clearly establ ished Supreme Court precedent.
V. CONCLUSION Because we cannot conclude that the OCCA’s ultimate balancing of the four Barker factors was objectively unreasonable in light of clearly established Supreme Court precedent, we AFFIRM. Appellant’s pr o se motion “to re-brief the appeal if necessary” is denied.