     Case: 16-60084      Document: 00514183602         Page: 1    Date Filed: 10/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                      No. 16-60084                             FILED
                                                                         October 4, 2017
                                                                          Lyle W. Cayce
SHAWN M. STATES,                                                               Clerk

              Petitioner - Appellant

v.

PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS,

              Respondent - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-226


Before DAVIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Shawn M. States, who was convicted on two counts of capital murder and
received life sentences, proceeds pro se and contests the denial of habeas relief
under 28 U.S.C. § 2254. When considering the denial of such relief, we review
the issues of law de novo and findings of fact for clear error, applying the same
deference to the state-court’s decision as the district court under the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-60084
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Ortiz v.
Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).
      Pursuant to AEDPA, habeas relief may not be granted with respect to a
claim that was adjudicated on the merits in state court, unless the state court
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C.
§§ 2254(d)(1), (d)(2). Deference under § 2254(d) applies where the state court
has adjudicated the claims on the merits pursuant to a summary ruling that
lacks explicit reasons, as the Mississippi Supreme Court did here. See
Harrington v. Richter, 562 U.S. 86, 98-99 (2011). “Where a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court
to deny relief.” Id. at 98.
      As permitted by the certificate of appealability (“COA”) granted by the
district court, States claims: (1) his state and federal speedy trial rights were
violated; (2) his counsel was ineffective in failing both to raise the speedy trial
issue and to move to suppress his post-arrest statement on the ground that it
was coerced; and (3) the jury instruction on flight was in error. States also
claims the admission of his post-arrest statement was in error; but, because
neither this court, nor the district court, awarded him a COA on that claim,
the court lacks jurisdiction to consider it. See Carty v. Thaler, 583 F.3d 244,
266 (5th Cir. 2009); see also 28 U.S.C. § 2253(c).
      Likewise, to the extent States contends, for the first time on appeal, that
his conviction should be reversed on grounds of cumulative error, his claim
falls outside the scope of the COA and cannot be considered. See Carty, 583
F.3d at 266. States also requests in his reply brief, for the first time, an
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                                  No. 16-60084
expanded COA to include his substantive challenge to the admission of his
post-arrest statement and contends that the district court erred in denying
relief on the claim without first holding an evidentiary hearing. This court will
not consider these untimely issues because they were not presented in States’s
opening brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
                                         I.
      The court now considers States’s first issue on appeal: whether his right
to a speedy trial was violated. To the extent States contends the delay between
his arrest and trial violated his right to a speedy trial under Mississippi law,
that claim is not cognizable. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
(“[F]ederal habeas corpus relief does not lie for errors of state law. It is not the
province of a federal habeas court to reexamine state-court determinations on
state-law questions.”) (internal punctuation and citations omitted). States’s
federal speedy trial claim must be considered under Barker v. Wingo’s four-
factor test. 407 U.S. 514, 530-32 (1972). The 36-month delay between his 2007
arrest and 2010 trial is sufficient to trigger consideration of the claim under
the first Barker factor. United States v. Serna-Villarreal, 352 F.3d 225, 230
(5th Cir. 2003) (recognizing that delays exceeding one year require further
examination of the remaining Barker factors).
      The second Barker factor, reason for delay, is equally attributable to both
parties. See Goodrum v. Quarterman, 547 F.3d 249, 258-59 (5th Cir. 2008).
There is no explanation for delays between November 2008 and April 2009,
and again between August 2009 and January 2010. The record indicates that
States agreed to multiple trial continuances, and States does not allege that
the state intentionally delayed trying his case to gain an unfair advantage.
Accordingly, this factor does not weigh heavily in State’s favor.
      Under the third Barker factor, assertion of the right to a speedy trial, the
magistrate judge determined that States had not diligently asserted his right
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                                   No. 16-60084
to a speedy trial. States contends that he sent a letter to the trial court to assert
his “hope to have a fair and speedy trial” in September 2007. He claims he sent
a second letter in March 2010 when he was informed that the first letter had
been misplaced. States does not produce any evidence to substantiate this
assertion. Even assuming that States mailed these letters to the trial court,
this factor does not weigh in his favor because he fails to demonstrate that he
vigorously complained about the delay over the course of the remaining 32
months before trial. Id. at 259; United States v. Parker, 505 F.3d 323, 329-30
(5th Cir. 2007).
      Because the first three Barker factors do not weigh heavily in States’s
favor and because the delay was less than five years, see Goodrum, 547 F.3d at
260, States bears the burden under the fourth factor to demonstrate actual
prejudice from the delay. United States v. Bishop, 629 F.3d 462, 465 (5th Cir.
2010). Prejudice should be assessed in light of speedy trial interests, including:
(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and
concern of the accused; and (3) limiting the possibility that the defense was
impaired by the delay. Barker, 407 U.S. at 532. States claimed in his previous
habeas petitions that he was prejudiced because he was forced to live in
substandard conditions where he was under the threat of sexual assault and
physical abuse. States also claimed he was prescribed anti-depressants and
was placed on suicide watch. States further alleged that his defense was
prejudiced because he was unable to locate three Spanish-speaking witnesses.
States fails to carry his burden because he neglects to renew his allegations
raised below. See Yohey, 985 F.2d at 224-25; see also Divers v. Cain, 698 F.3d
211, 219 (5th Cir. 2012). Accordingly, he has abandoned any argument that he
suffered actual prejudice. See Yohey, 985 F.2d at 224-25 (stating that
arguments not briefed on appeal are deemed abandoned); see also Divers, 698


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                                  No. 16-60084
F.3d at 219 (rejecting the defendant’s speedy trial claim where he failed to brief
any argument identifying actual prejudice).
                                        II.
      States next alleges ineffective assistance of counsel claims. Inasmuch as
States maintains his trial counsel was ineffective for failing to raise a federal
speedy trial claim, the claim necessarily fails. Counsel was not ineffective for
refusing to raise a meritless issue. See United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999).
      Inasmuch as States brings an ineffective assistance of counsel claim for
failing to raise a Mississippi statutory speedy trial violation, that claim also
necessarily fails. The Mississippi Supreme Court denied States’s claim that
counsel was ineffective for failing to raise a Mississippi statutory speedy trial
violation claim. States does not make the requisite showing that counsel’s error
fell below an objective standard of reasonableness and that but for counsel’s
poor performance, the result of the trial and proceedings below would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
      States’s claim that trial counsel was ineffective for failing to file a motion
to suppress his post-arrest statement on the ground that it was coerced is
similarly unavailing. Threats to withhold access to a defendant’s loved ones or
to somehow burden them until or unless the defendant confesses can raise
coercion issues. See Rogers v. Richmond, 365 U.S. 534, 540-45 (1961). However,
these concerns are attenuated when the family member or loved one is
plausibly tied to the crime. See Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir.
1986).
      In Allen v. McCotter, the defendant-petitioner argued that his confession
to attempted robbery was involuntary where, during the defendant’s
interrogation, the investigating detective threatened to file charges against the
defendant’s wife unless he confessed. See id. at 1363-64. This court found that
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                                  No. 16-60084
because the defendant’ wife drove him to the bar where the attempted robbery
occurred, probable cause existed to arrest her as well; therefore, petitioner’s
confession resulted from a constitutionally-permissible warning regarding a
“possible good faith arrest.” See id. at 1364.
      States, here, finds himself positioned in much the same way as the
defendant in Allen. See id. at 1363. States argues that the officers’ promises to
release his girlfriend, Ariana Torrenegra, if States told the truth, combined
with a desire not to “further jeopardize” Torrenegra, motivated him to “create
a story” based on lies. As with the defendant’s wife in Allen, the police here
also had substantial probable cause to arrest Torrenegra. See id. at 1364.
Officers arrested Torrenegra in a stolen car belonging to one of the victims. She
admitted to using one of the victim’s credit cards. The officers’ promise to let
Torrenegra walk free was within the department’s discretion. Any implicit
threats to continue investigating Torrenegra were constitutionally permissible
given her likely involvement in the crime. See id. Therefore, giving the state
court deference that AEDPA requires, merely invoking Torrenegra’s name in
this way was not enough to render States’s subsequent statements
involuntary. See id.
                                       III.
      Finally, States contends that the trial court’s jury instruction regarding
flight violated his due process rights. Improper jury instructions in state
criminal trials do not generally entitle § 2254 petitioners to federal relief and
will only do so when the error in the jury charge “so infected the entire trial
that the resulting conviction violates due process.” Galvan v. Cockrell, 293 F.3d
760, 764-65 (5th Cir. 2002) (internal quotations omitted). An error is harmless
unless it “had substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal


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                                No. 16-60084
quotations omitted). Harmless error does not warrant habeas relief. Galvan,
293 F.3d at 765.
      The state supreme court determined that, although a jury instruction on
flight was unwarranted, any error was harmless given the overwhelming
evidence of his guilt. States v. State, 88 So. 3d 749, 758 (Miss. 2012). States
contends that this assumption is unfair; but, he points to no evidence showing
that the error was not harmless. States fails to demonstrate that the trial
court’s flight instruction amounted to a federal due process violation. See
Yohey, 985 F.2d at 224-25; see also Henderson v. Kibbe, 431 U.S. 145, 154
(1977); Galvan, 293 F.3d at 764-65.
      Accordingly, the district court’s denial of States’s § 2254 petition is
AFFIRMED.




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