### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20796

RANDELL GLEN LAWS, Petitioner–Appellant
v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee

A ppeal from the United States District Court for the Southern District of Texas U .S.D.C. No. 4:07-CV-4472

Before SMITH, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * Petitioner Randell Glen Laws a p p e a l s from the district court’s denial of his federal habeas petition. Because Laws fails t o s h ow that he wa s d e n ied his constitutional right to a speedy t r ial or that the state courts unreasonably rejected his ineffective assistance of appellate counsel claim, we AFFIRM. U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-20796 Document: 00512310013 Page: 1 Date Filed: 07/16/2013No. 11-20796 I. Facts and Procedural History Fifteen y e ars a fter Lyle Sacry’s d eath, a cold-case investigation implicated Laws a nd two of his former r elatives. The three were c harged with murder and arrested. L aws’s f

ormer r elatives challeng e d e x t r a d i t i o n f r o m W e s t Virginia, but Laws w aived extradition from Florida. The day after Laws returned to Texas, the state court appointed Randall Ayers as trial counsel. Nearly t wenty-three months passed before Laws stood trial. The State initially waited for the putative co-defendants’ extradition, but it u lti m a tely decided against trying them with Laws and declined t o present their testimony. The State also moved for numerous continuances. Laws acquiesced to almost all of them, but he o bjected on a few instances. He twice moved for a speedy trial and on one occasion wrote to the state trial judge to complain about the delay. E v e n s o, Laws showed some ambivalence about the lengthy pretrial
process. He filed a wide-ranging motion f or discovery on t he same day he filed his first motion for a s peedy trial. He twice moved for additional investigative resources—the second time sixteen months after his arrest. A j u r y e v entually convicted Laws of m urder, and he w as sentenced to ninety- n i n e y e a r s in prison. Represented by L ayton Duer on appeal, Laws contended that insufficient evidenc e s u pported t h e verdict. The i n termediate appellate court affirmed Laws’s conviction, and the Court of Criminal Appeals refused his p e tition for review. See Laws v. State , No. 01-04-847-CR, 2006 WL 241313 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (unpublished). Laws timely filed for state habeas relief pro se , asserting i n relevant part that the State violated his state and f ederal speedy-trial rights a nd that Ayers and D uer rendered ineffective a ssistance. La w s a l leged t hat Ayers failed to aggressively assert his speedy-trial rights and that Duer failed to brief a speedytrial claim on d irect appeal. The state t r i a l court procedurally barred Laws’s speedy-trial claim, ruling t hat such claims were n ot cognizable in Texas habeas

2 Case: 11-20796 Document: 00512310013 Page: 2 Date Filed: 07/16/2013No. 11-20796

proceedings, and determined that Laws received sufficient representation and suffered no prejudice. The Court o f Criminal Appeals d enied h abeas relief on the trial court’s findings w ithout holding a hearing or issuing a n o rder provid i n g

reasons. Laws then f

iled for f

ederal habeas relief , raising e ssentially the same issues he had presented i n state court. The State moved for summary judgment, but conceded at a hearing that Laws d i d not procedurally default his Sixth Amendment speedy-trial claim. The magistrate judge concluded that the State viol a t e d L a w s ’ s s p e e d y - t r i a l r i g h t s a n d t h a t Duer was constitutionally ineffective

on direct appeal. He recommended granting habeas relief, and Laws moved for release from confinement. The district court withdrew the r efer ence and denied habeas relief. Applying de novo review to Laws’s speedy-trial cl a im, t h e district court determined that the c l a i m failed on its merits and, alternatively, that it was procedurally barred. Analyzing L a w s ’ s ineffective-assistance c l aim under the Antiterroris m and Effective Death Penalty Act of 1996 (“AEDPA”), the court ruled that Duer had no o bligation to r a ise every nonfrivolous issue on appeal and that, regardless, Laws suffered no prejudice because the underlying s peedy-trial claim lacked merit. Laws moved for a Certificate o f Appealability (“COA”), which the district court denied. This co u r t g r a n t e d a COA on “(1) w hether Laws was denied his constitutional r ight to speedy t rial; and (2) whether Laws was d e n i ed his constitutional right to the effective assistance of c ounsel because counsel did not raise the speedy t rial issue on direct appeal.” Laws v. Thaler , No. 11-20796, slip op. at 2 (5th Cir. Aug. 8, 2012). We consider these issues in turn.

3 Case: 11-20796 Document: 00512310013 Page: 3 Date Filed: 07/16/2013No. 11-20796 II. Speedy-Trial Claim 1 In line with the d i s t r i ct court’s ruling, the State insists that Laws’s speedytrial claim is p rocedurally b arred. A state procedural default, however, does not always preclude our review. We may reach the merits of potentially defaulted

c l aims—and e ven a pply de novo review—when doing so would result in the denial o f habeas relief. See Berghuis v. Thompkins , 130 S

. Ct. 2250, 2265 (2010) (“Courts can
. . . deny wri t s of habeas corpus under § 2 254 b y engaging in de

novo review when it is u nclear whether A EDPA deference app l i e s , because a habeas petitioner will not b e entitl e d to a writ of habeas corpus if his or her claim is rejected on d e n ovo review, see § 2254(a).”); Roberts v. Thaler , 681 F.3d 597, 605 ( 5th C ir.), cert. denied , 133 S

. Ct

. 5 2 9 ( 2 0 12) (“While our normal procedure is to consider issues of procedural default first, we ma y nonetheless opt to ex a m i n e the merits first, e specially when procedural default turns on difficult questions of s tate law.”). Because Laws’s speedy-trial claim f ails under de novo review, we do not consider whether t he district c o urt properly reimposed the procedural bar despite the State’s concession that it did not apply. 2

1 We conf

ine our review of this claim to the state court record

. Although Law s ’s s p eed ytrial claim w as not ad jud icated on the m erits in s tate court, “§ 2254( e) ( 2) s t i ll res tricts the d is cretion of f

ed eral habeas courts to cons id er new evid ence. ” Cul l en v
. Pi nhol ster , 131 S. Ct. 1388, 1401 ( 2011)

. We m ay cons id er only new f acts “ t h a t c ould not have been p revious ly d is covered through the exercis e of d ue d iligence” a nd that “w ould be s uf ficient to es tablis h by clear and convincing evid ence that but f or cons titutional error, no reas onable f actf ind er w ould have f ound the ap p licant guilty of the und erlying of f ens e. ” 28 U

. S. C. § 2254( e) ( 2) ( A) ( ii) , ( e) ( 2 ) ( B )

. Becaus e Law s p rovid es no real exp lanation f or w hy he could not have obtained af f id avits f rom his m other, Ayers , and him s elf d uring s tate habeas p roceed ings , § 2254( e) ( 2) p revents us f

rom cons id ering the af f id avi t s s u b m i t t e d in the d is trict court. See Wi l l i a m s v
. Ta yl or , 529 U

. S. 420, 435 ( 2000) ; Conner v. Q ua rterm a n , 477 F. 3d 287, 293 ( 5th Cir. 2007)

.

2 We note, how ev e r , t h a t Texas law p erm its d ef end ants to rais e Sixth A m end m ent
s p eed y- trial claim s both on d irect ap p eal and in p os t- conviction proceed ings

. See, e. g. , Ex p arte Irv a n , N o. WR- 75428- 01, 2011 WL 2378184, at *1 ( Tex. C rim

. A p p
. 2011) ( u n p u b l i shed ) ( noting that Texas law bars s ta t e l a w s p e e d y- trial claim s f rom collateral p roceed ings , but that “the right to a s p eed y trial und er the f ed eral cons titution[ ] is cogniza b l e ” ) ; E x p a rte G ra v es , 70 S. W. 3d 103, 109 ( Tex. Crim

. Ap p
. 2002) ( “[ B] oth f ed eral and Texas courts have conf ined the
s cop e of p os t- conviction w rits of habeas corp us to juris d ictional or f und am ental d ef

ects a nd
4 Case: 11-20796 Document: 00512310013 Page: 4 Date Filed: 07/16/2013No. 11-20796

The Sixth Amendment provides that, “ [i]n all cri m i nal prosecutions, the accused shall enjoy the right to a speedy and public tri a l[.]” Because it is difficult t o pinpoint w hen a delay becomes unconstitutionally l ong, the S upreme Court has r ejected a bright-line approach. “ It is

. . . i m possible to determine with precision when” a specific delay crosses the line. Barker v. Wingo , 407 U.S. 514, 521 (1972). Thus, “‘[t]he right of a speedy trial is necessarily r e lative,’” and courts must apply “a functional analysis of the right in the particular context of the c ase[.]” Id. a t 522 (citation omitted). That analysis consists of “four separate enquiries: [1] whether delay b efore trial was uncommonly long, [2] whether the
governm e n t or t he criminal defendant is more to blame for that delay, [3] whether, in due c ourse, the d e f e n d ant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the d elay’s result.” Doggett v. U nited States , 505 U.S. 647, 651 (1992) (citing Barker , 407 U.S. at 530). Considering t he first factor, the nearly 23-month delay between Laws’s arrest and trial weighs, at most, only slightly i n h i s favor. See Amos v. Thornton , 646 F.3d 199, 206– 0 7 (5th Cir. 2011) (reasoning that a delay of less than th i r t y m o n t h s p recludes the first Barker factor from “strongly favor[ing] the accused”); Goodrum v
. Quarterman , 547 F.3d 249, 260 (5t h C i r
. 2008) (noting that a presumption of p rejudice from delay alone “ applies only where the delay is at least [five] y ears”). Because t his “first factor serves a dual function” as both

a substantive Barker factor and “a threshold requirement,” we need not analyze the remaining factors u nless the case involves a delay of over twelve months. See United States v. Schreane , 331 F.3d 548, 553 (6th Cir. 2003). As the delay here exceeds the 12-month trigger, we move on to the second factor. 3

consti tuti ona l cl ai m s
. Violations of s tatutes , rules , or other non- cons titutional d octrines are not recognized .” ( em p has is ad d ed ) ( f ootnote om itted ) ( collecting cas es ) )

.
3 We note that m uch of the d e l a y s hould not count tow ard s the s p eed y- trial “clock

. ” About eleven m onths w ere s p ent w aiting f or the extrad ition of p otential co- d ef end ants

. See 5 Case: 11-20796 Document: 00512310013 Page: 5 Date Filed: 07/16/2013No. 11-20796

The second Barker factor—which party is more re s p o n s ible for the delay—primarily conc e r n s the justification f or the delay. “[D]ifferent weights should b e assigned to different r easons.” B arker , 407 U.S. at 53 1

. Delays engin e e r e d “ t o hamper the defense” are “ weighted h eavily a gainst the government.” Id. Those c aused by “negligence or o vercrowded courts,” h owever,

are weighted “less h e a v i l y
. ” Id. Some reasons, “such as a missing witness, should serv e t o justify appropriate delay” and will n ot count against the government. Id. Laws a dmits that the State did not intend to prejudice his d efense through the d elays and t hat some delay was caused by the extradition challenges. That said, t he State moved f or virtually a ll of the continuances, and it concedes that one delay was caused by the t rial court and at least another by the prosecutor. Even if these delays slightly weigh a g ainst the State, h owever, Laws agreed to the vast m a j o r i t y of resets. 4 At most, then, t he second factor is neutral. See Schreane , 331 F.3d at 554 (concluding that the second Barker f actor favored “no one” when delay could be blamed on both parties). T u r n ing to t he third factor, the “failure t o assert the right will m a k e i t difficult for a d efendant t o prove that he was denied a speedy trial.” Barker , 407 U.S. at 532. But not every i nvocation of the r i g h t will do. Defendants must

U ni ted Sta t e s v
. Pa rker , 505 F. 3d 323, 327 ( 5th Cir. 2007) ( noting, in the Sp eed y Trial Act context, that the “s peed y trial clock ” begins to run once all co - d e f end ants have ap p eared in court) ; U

ni ted Sta t es v. Herna ndez , 457 F

. 3d 416, 421 ( 5th C ir. 2006) ( “d oubt[ ing] ” that d elay incurred d ue to the G overnm ent w aiting on a w itnes s “am ounted even to of f icial negligence, ”
even though the w itnes s ultim ately d id not tes tif y)

. Som e of the delays , m oreov e r , w ere attributable to Law s ’s reques ts f or d is covery and inves tigati v e res ources
. See N el son v
. H a rgett , 989 F. 2d 847, 852 ( 5th Cir. 1993) ( “The s p eed y trial clock is p rop erly tolled in cas es w here res p ons ibility f or the delay lies w ith the d ef end ant rather than the s tate. ”)

. Although
w e d ecline to s ubtract m onths f rom the s p eed y- trial clock to p reterm it a f ull Ba rker inquiry, the d elay f

or s p eed y- trial p urp os es lik ely w eighs even les s in Law s’s f avor.

4 When Law s op pos ed res ets , he d id s o i n c los e p roxim ity to reques ts f or more inves tigation and d is covery, s ugges ting that he could benef it from ad d itional tim e. 6 Case: 11-20796 Document: 00512310013 Page: 6 Date Filed: 07/16/2013No. 11-20796

“appropriately a s s e r t []” their speedy-trial rights, as viewed in “light of [their] other conduct.” United States v. Loud H awk , 474 U.S. 302, 314 (1986). Thus, it is possible for a defendant to insufficiently assert h is speedy-trial rights despite “repeatedly mov[ing] for dismissal on speedy trial grounds.” Id. That is what occurred h ere. Laws’s first motion for a speedy trial—filed

over eight months after his arrest—only g enerically alleged t h at the delay had “prejudiced and h armed” him. The motion also insufficiently asserted the right in light of Laws’s other c onduct. He concurrently signed an “ Agr e e d S e t t i ng” form a nd took other actions suggesting that he was n ot, in fact, ready for trial. See Millard v. Lynaugh , 810 F.2d 1403, 1406 ( 5th Cir. 1987) (explaining why a petitioner’s speedy-trial motions were not “a s incere effort to obtain a speedy trial”). Laws’s second speedy-trial motion demanded o nly his release a n d t h e indictme n t ’ s dismissal, an improper assertion of speedy-trial rights. See, e.g. , Barker , 407 U.S. at 534–35; United States v. Frye (Frye II ), 489 F.3d 201, 212 (5th Cir. 2007) (“A motion for d ismissal is not evidence that the defendant wants t o b e t r ied promptly.”). Throughout the pretrial proceedings, m oreover, Laws signed numerous “Agreed S e tting” form s without objection. 5 Because Laws ins u fficiently and inconsistently asserted his speedy-trial rights, the third Barker f actor s upports the State. See Goodrum , 547 F.3d at 259 (observing that this factor hinges on the “frequency and forcefulness ” o f the “defendant’s invocation”); Parker , 505 F.3d at 329–30. Because the first three f actors do not h eavily support Laws, he must prove that he suffered actual prejudice to prevail on t he four t h Barker factor. See Goodrum , 547 F.3d at 260–61; Frye II , 489 F.3d at 212. In analyzing prejudice,

5 Betw een O ctober 15, 2002, and M ay 25, 2004, Law s s igned ten “Agreed Setting” f orm s w it h out any record objection. H e objected to a res et only tw ice, and even then d id so ins uf f iciently. On M ay 27, 2003, Law s sim ultaneous ly s igned an “Agreed Setting” f orm and
m oved f or a s p eed y trial and d is covery. O n N ovem ber 11, 2003, he objected to a continuance
on an “Agreed Setting” f orm , only to later m ove f or ad d itional inves tigative res ources
. 7 Case: 11-20796 Document: 00512310013 Page: 7 Date Filed: 07/16/2013No. 11-20796

we look to three “interests” that the s peedy-trial right “was designed to protect”: “(i) t o p revent o ppressive pretrial incarceration; (ii) t o minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker , 407 U .S. at 5 32. “[T]he most serious [concern] i s t h e l a s t, because the inability o f a defendant adequately to prepare his c ase skews the fairness of the entire system.” Id. L aws concedes that the delay did n ot impair his defense. Th u s , h i s speedy-trial claim rests entirely on showing that he suffered oppressive pretrial incarceration or anxiety. Laws does not satisfy that difficult burden. We recognize that a pretrial diagnosis of cancer undeniably cause d L a w s anxiety, t hough w e note that he received treatment and would have endure d t h at a nxiety outside prison. See Frye I I , 489 F.3d at 213 ( citing Gray v
. K i n g , 7 2 4 F

. 2 d 1199, 1204 (5th Cir. 1984)). The Supreme C ourt h as suggested that living “under a cloud of suspicion and anxiety” for four years constitutes only “minimal” prejudice absent an effect

on a defendant’s t rial. Barker , 407 U .S. at 534. As mentioned abo v e , Laws concedes that he has failed to demonstrate trial-related prejudice. 6 Balancing the Barker factors, we conclude t hat Laws’s speedy-trial claim lacks merit. The delay here was not unusually l ong, 7 a nd a good p o rtion of it was

6 Law s ’s cold

- cas e m urd er conviction als o is “s erious ” enough to m itigate a s how ing of
non- trial prejud ice. See Ba rker , 407 U

. S. at 531; U ni ted Sta tes v
. Bi shop , 629 F. 3d 462, 466 ( 5th Cir. 2010) ( noting that a cas e’s com p lexity concerns the p rejud ice f actor)

.
7 S e e Loud H

a w k , 474 U

. S. at 304–05 ( d enying s p eed y- trial relief ; 90- m onth d elay) ; Ba rker , 407 U

. S. at 534, 536 ( s am e, f our- year d elay) ; A m os , 646 F. 3d at 203, 209 ( sam e; s tate court “could eas ily conclud e” 16- m onth d elay d id not violate s p eed y - trial rights ) ; B i shop , 629 F. 3d at 467–68 ( s am e, at leas t 22- months d elay p os t- ind ictm ent) ; U ni ted Sta tes v
. Ha rri s , 566 F. 3d 422, 428, 433 ( 5th Cir. 2009) ( s am e; three- year d elay) ; G oodrum , 547 F. 3d at 260, 266 ( s am e, 30- m onth d elay) ; Pa rker , 505 F. 3d 328, 330 ( s am e, 17- m onth d elay) ; Frye II , 489 F

. 3d at 210, 213 ( s am e, 47- month d elay) ; U ni ted Sta t es v
. Robi nson , 455 F. 3d 602, 607–09 ( 6th Cir. 2006) (s am e, 29- m onth delay) ; U ni ted Sta tes v
. Serna

- V i l l a rea l , 352 F. 3d 225, 232–33 ( 5th Cir. 2003) ( s am e; 45- m onth d ela y ) ; M i l l a rd , 810 F. 2d at 1406–07 ( sam e, 18- m onth d elay) ; cf

. D oggett , 505 U. S. 650, 658 ( granting s p ee d y - t r ial relief ; 8. 5- year d elay) ; U ni ted Sta tes v
. M ol i na -Sol ori o , 577 F. 3d 300, 304, 308 ( 5th Cir. 2009) ( sam e, alm os t a 10- year d elay)

. 8 Case: 11-20796 Document: 00512310013 Page: 8 Date Filed: 07/16/2013No. 11-20796

j u s t i f i e d o r a t t r ibutable to Laws. Laws inconsistently and insufficiently assert e d his s peedy-trial rights and fails to s how particularized prejudice sufficient to

overcome the first three Barker factors. See Robinson , 455 F.3d at 608 (“In the absence of particularized trial prejudice, delay attributable t o the government’s negligence ‘has typically b een shockingly long’ to warrant a finding of prejudice.” (quoting Schreane , 331 F.3d at 559)).

III. Ineffective Assistance Claim 8 Because Laws’s speedy-trial claim lacks merit, his ineffective assistance claim necessarily f

ails. To succeed o n an ineffective assistance claim, a defendant must show that c ounsel w as o bjective l y deficient and “that the deficient performance prejudice d the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). Laws c ould n ot have suffered prejudice f rom Duer’s failure to brief a nonmeritorious issue. See Smith v. Robbins , 528 U .S. 259, 285 (2000) (To show prejudice, a defendant “must show a r easonable probability that, but for h is couns e l ’ s unreasonable failure to file a merits brief, h e would have prevailed on his appeal.”). 9 Even if L aws’s speedy-trial claim h ad more force, the state court nonetheless c ould have reasonably concluded that briefing it w o uld not h ave had

a substantial probability of altering the o utcome on d irect appe a l

. See

8 Becaus e the s tate courts ad jud icated this claim on the m erits , Pi nhol ster m and ates that w e look only to the s tate court record , rend ering Law s ’s af f id avit evid ence im m aterial to our analys is

. See 131 S. C t. at 1400 ( “If a claim has been ad jud icated on the m erits by a s tate court, a f

ed eral habeas p etitioner m us t overcom e the lim itation of § 2254( d ) ( 1) on the record t h a t w a s b e f

o r e that s tate court. ”)

. Relying on S m i t h v
. Ca i n , 708 F

. 3d 628, 631 ( 5th Cir. 2013) , Law s argues that this record lim itation d oes not bar cons id eration of his af f id avits becaus e the m agis trate jud g e conclud ed that the s tate courts unreas onably ap p lied c l e arly
es tablis hed f

ed eral law and granted h i m a n e v i d entiary hearing. But as the d is trict court never ad op ted the m agis trate jud ge’s conclus ions , P i nhol ster— not Sm i t h— ap p lies here.

9 S ee Robbi ns , 5 2 8 U

. S

. at 286 n. 14 ( “The p erf orm ance com p onent need not be ad d res s ed f

irs t. ‘If it is eas ier to d is p os e of an inef f ectivenes s claim on the ground of lack of
s uf f icient p rejud ice

. . . that cours e s hould be f ollow ed .’” (quoting Stri ckl a nd , 466 U. S. at 697) )

. 9 Case: 11-20796 Document: 00512310013 Page: 9 Date Filed: 07/16/2013No. 11-20796

Harrington v
. Rich t e r , 131 S. Ct. 770, 786 (2011) (“Under § 2 254(d), a habeas court must determine what arguments or t heories supported or, as here, could have supported, the state court’s decision[.]”). That c o n c l u s ion is especially appropriate because the state court adjudicated Laws’s ineff e c tive-assistance

c l a i m on t he merits, requiring us to review it under the doubly deferential standards of b oth Strickland and AEDPA. In such cases, the “pivotal question” is not “whether defense counsel’s performance fell below Strickland ’s standard,” it is “whether the s tate c ourt’s application of t he Stricklan d s t a n d a r d was unreasonable.” Id. at 785. Because it was not, we must reject Laws’s ineffective assistance claim. Conclusion Laws’s speedy-trial claim fail s
. He therefore could not h ave been prejudiced by appella t e c ounsel’s decision to o mit that claim on direct appeal. Accordingly, we AFFIRM the district court’s denial of habeas relief. 1 0

1 0 T his cas e does not involve the s ituation pres ented in Trev i no v
. Tha l er , 133 S. Ct. 1911 ( 2013) , becaus e, unlik e that cas e, the inef f ective as s is tance of couns el claim w as rais ed in the s tate habeas p roceed ing and , theref ore, w as not as s erted to be p roced urally d ef aulted in f ed eral court. 10 Case: 11-20796 Document: 00512310013 Page: 10 Date Filed: 07/16/2013