     Case: 13-70001      Document: 00515529734         Page: 1    Date Filed: 08/17/2020




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

                                      No. 13-70001                         FILED
                                                                     August 17, 2020
                                                                      Lyle W. Cayce
Consolidated with 19-70001                                                 Clerk

WILLIAM SPEER,

              Petitioner - Appellant

v.

BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                  Appeals from the United States District Court
                        for the Eastern District of Texas
                               USDC 2:04-CV-269




Before JONES, STEWART, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge: *
       A jury found that while William Speer was in prison for murder, he
murdered again.        This time he was sentenced to death.                  His collateral



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-70001            Document: 00515529734         Page: 2     Date Filed: 08/17/2020


                                          No. 13-70001
                                      Cons. w/ No. 19-70001
challenges to his conviction and death sentence have been percolating in state
and federal courts for many years. He appeals the district court’s rejection of
his speedy trial and Brady claims and seeks authorization to appeal its
rejection of his ineffective assistance claims. We affirm the rejection of his
speedy trial and Brady claims, and grant a certificate of appealability on the
ineffective assistance claim **.
                                                  I.
         In July 1997, Speer was serving a life sentence for capital murder. Speer
v. State, 890 S.W.2d 87 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). While
serving that sentence in Texas prison, he was charged with murdering another
prisoner, Gary Dickerson. The murder was an attempt to ingratiate himself
with a gang called the Texas Mafia.                     The leader of the gang, Michael
Constandine, wanted Dickerson dead because he believed, incorrectly, that
Dickerson had caused prison officials to intercept an incoming shipment of
cigarettes—a valuable prison commodity. Speer volunteered for the job. He
went to Dickerson’s cell with Texas Mafia member Anibal Canales on the
pretext of smoking a cigarette with Dickerson. But once there, Speer choked
Dickerson to death while Canales restrained his arms and feet. Speer later
recapped to other Texas Mafia members that he told Dickerson in his last
moments, “don’t fuck with the Texas Mafia, not even in hell.”
         It took more than two years, until November 1999, for Speer to be
indicted for capital murder. And his trial did not begin for another two years.
When it finally started, the prosecution primarily relied on inmate testimony
that Speer had admitted—both in person and in writing—to the attack. The
jury convicted Speer. After the punishment phase, the jury answered the



         **   Judge Jones would deny the certificate of appealability on the ineffective assistance
claim.


                                                   2
    Case: 13-70001    Document: 00515529734     Page: 3   Date Filed: 08/17/2020


                                No. 13-70001
                            Cons. w/ No. 19-70001
special questions in favor of death. The Texas Court of Criminal Appeals
affirmed on direct appeal. Speer v. State, 2003 WL 22303983 (Tex. Crim. App.
Oct. 8, 2003).
      Speer next sought state postconviction relief, raising speedy trial and
ineffective assistance of counsel claims. According to Speer, his counsel was
constitutionally ineffective for failing to investigate or develop mitigation
evidence. And Speer’s right to a speedy trial was violated, he argued, because
of the nearly two-year delay in trying him after the indictment issued.
      The trial judge concluded that neither Sixth Amendment right had been
violated, finding, among other things, that:
   • Speer’s trial counsel had interviewed prospective witnesses for
     mitigation purposes and had presented mitigating evidence during trial;
   • the State did not deliberately attempt to delay trial; and
   • Speer—who was already incarcerated—suffered no prejudice from the
     delay and asserted the speedy trial right only in a motion to dismiss that
     was filed two months before trial.
Adopting those findings, the Texas Court of Criminal Appeals denied relief. Ex
parte Speer, 2004 WL 7330992 (Tex. Crim. App. June 30, 2004) (per curiam).
      Speer then filed a federal habeas petition based on the same claims.
Three years later, he moved the district court for a stay so he could seek state
habeas relief on an alleged Brady violation. The district court granted the
motion, and Speer filed a second habeas petition in state court.
      After the state trial judge denied relief on the Brady claim, the Texas
Court of Criminal Appeals remanded the petition for a determination of
“whether [a] factual basis for the [Brady] claim was unavailable on the date
that [Speer] filed his previous application.” Ex parte Speer, 2008 WL 4803515,
at *1 (Tex. Crim. App. Nov. 5, 2008) (per curiam). On remand, the trial judge




                                       3
    Case: 13-70001     Document: 00515529734   Page: 4   Date Filed: 08/17/2020


                                No. 13-70001
                            Cons. w/ No. 19-70001
examined each document that Speer claimed the State had withheld, finding
that:
   • Speer’s trial counsel had access to all but three exhibits alleged to be
     Brady material;
   • every document, including the three that were withheld during trial, was
     available to Speer’s habeas counsel when Speer first applied for
     postconviction relief; and
   • Speer’s habeas counsel asked the State to produce, but “made no
     attempts to view[,] the prosecutor’s trial file.”
        Relying on those findings, the Texas Court of Criminal Appeals
dismissed Speer’s second petition because he could have—but did not—raise
the Brady claim in his initial state habeas application, which constitutes an
“abuse of the writ” under Texas law. Ex parte Speer, 2010 WL 724430, at *1
(Tex. Crim. App. Mar. 3, 2010) (per curiam); see TEX. CODE CRIM. PROC. ANN.
art. 11.071, § 5(a).
        Back in federal court, Speer filed an amended habeas petition. The
district court referred the petition to a magistrate judge who recommended
that each claim be denied—the Brady claim because of procedural default, and
the other two on the merits. The district court adopted the magistrate judge’s
recommendation, granted Speer’s request for a certificate of appealability on
his speedy trial and Brady claims, and entered final judgment.           Speer
appealed. But he challenged only the district court’s speedy trial and Brady
decisions; he did not seek a certificate of appealability on his ineffective
assistance claim.
        During the lengthy federal habeas proceeding, the Supreme Court
decided Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S.
413 (2013). Those decisions meant that in Texas, ineffective assistance of
habeas counsel could now qualify as cause to overcome a procedural default.
See Trevino, 569 U.S. at 429; Martinez, 566 U.S. at 17–18. Speer’s counsel thus


                                      4
    Case: 13-70001     Document: 00515529734    Page: 5   Date Filed: 08/17/2020


                                No. 13-70001
                            Cons. w/ No. 19-70001
asked to withdraw, arguing that it would be a conflict of interest for him to
evaluate whether his state habeas representation was ineffective. Another
panel of this court denied the withdrawal motion but directed the district court
to appoint “supplemental counsel for the sole purpose of determining whether
Speer has additional habeas claims that ought to have been brought” under
Martinez and Trevino. Speer v. Stephens, 781 F.3d 784, 786 (5th Cir. 2015).
To that end, and without resolving any of Speer’s pending claims, we remanded
the petition for the district court “to consider in the first instance whether
Speer [could] establish cause for the procedural default of any ineffective-
assistance-of-trial-counsel claims[,] . . . and if so, whether those claims merit
relief.” Id. at 787.
      On remand, the magistrate judge appointed supplemental counsel and
authorized funding for Speer to conduct a mitigation investigation. Armed
with those resources, Speer developed new evidence and submitted a brief that
enhanced his prior ineffective assistance claim concerning the failure to
discover or introduce mitigating evidence. The magistrate judge recommended
that relief be denied because, even considering his new evidence, Speer did not
suffer prejudice as a result of the allegedly deficient representation. That
meant he could not excuse a procedural default of the ineffective-assistance
claim and the claim also failed on the merits. The district court agreed and
dismissed the petition with prejudice. It also declined to authorize an appeal
on the ineffective assistance claim.
      The upshot of this convoluted procedural history is that we have the
following matters before us on the two appeals, which we have consolidated: 1)
an appeal from the denial of speedy trial claim; 2) an appeal from the denial of
the Brady claim; 3) a request to authorize an appeal on the ineffective




                                       5
     Case: 13-70001        Document: 00515529734           Page: 6     Date Filed: 08/17/2020


                                      No. 13-70001
                                  Cons. w/ No. 19-70001
assistance claim; and 4) an appeal from the denial of additional funding and a
hearing on the ineffective assistance claim.
                                               II.
       We begin with Speer’s speedy trial claim. Because the state court denied
it on the merits, our review is limited to whether that ruling was “contrary to,
or involved an unreasonable application of, clearly established” Supreme Court
law. 1 28 U.S.C. § 2254(d)(1). This highly deferential standard of review is even
more difficult to overcome when the claim involves “a broad, general standard
whose application to a specific case can demand a substantial element of
judgment.” Amos v. Thornton, 646 F.3d 199, 205 (5th Cir. 2011) (per curiam)
(quotations omitted). The right to a speedy trial, which requires the balancing
of various factors, is that type of judgment-laden inquiry. Id.
       The Sixth Amendment guarantees criminal defendants “the right to a
speedy and public trial.”          U.S. CONST. amend. VI.            Because that right is
“amorphous,” “imprecis[e],” “necessarily relative,” and “slippery,” the Supreme
Court established “a balancing test, in which the conduct of both the
prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514,
522, 529–30 (1972). Relevant factors include the length of the delay, the reason
for it, the defendant’s diligence in asserting the right, and whether the delay
prejudiced the defendant. Vermont v. Brillon, 556 U.S. 81, 90 (2009).
       But before getting to a Barker balancing, the defendant must make a
threshold showing that the delay—measured from the date of arrest or
indictment, whichever was first, Amos, 646 F.3d at 206—is “presumptively
prejudicial.” Barker, 407 U.S. at 530. A delay approaching one year satisfies


       1Section 2254(d)(2) also entitles a habeas petitioner to relief if a state court’s decision
was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1). But Speer
does not challenge the Texas Court of Criminal Appeals’ factual resolutions related to this
claim.


                                                6
     Case: 13-70001       Document: 00515529734          Page: 7     Date Filed: 08/17/2020


                                      No. 13-70001
                                  Cons. w/ No. 19-70001
that benchmark. See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).
That means, as the state court found, that the nearly two-year lag between
Speer’s indictment and trial warrants consideration of the Barker factors.
       The length of the delay does not just trigger the balancing test, it is also
a factor in it. United States v. Molina-Solorio, 577 F.3d 300, 305 (5th Cir. 2009)
(“The longer the delay[,] . . . the heavier this factor weighs in a defendant’s
favor . . . .”). The state court reasonably determined that the roughly two-year
delay weighs in favor of a speedy trial violation but not heavily so. Amos, 646
F.3d at 206–07 (noting a delay of 30 months strongly favors the accused).
       As for cause, the state court found that there was no intentional delay
by the state though it also did not find that the state had a good reason—like
locating a witness—for the delay. This “middle ground” of negligent delay
weighs slightly in Speer’s favor. Doggett, 505 U.S. at 656–57; see also Amos,
646 F.3d at 207 (“Because the delay is wholly unexplained, this factor weighs
in Amos’s favor, but the advantage that accrues to him is small.”).
       While the first two factors tip slightly in Speer’s favor, the state court
correctly recognized that the third factor—his timeliness in asserting the
right—weighs strongly against him. Speer waited nearly 22 months to raise a
speedy trial concern, well beyond the delay in other cases where we have found
this factor to weight against the defendant. 2 E.g., Divers v. Cain, 698 F.3d 211,
219 (5th Cir. 2012) (17 months); Robinson v. Whitley, 2 F.3d 562, 569 (5th Cir.
1993) (12 months). Once Speer mentioned the speedy trial right in a motion to
dismiss, the court sprung into action with a hearing just three days later and
trial less than two months later. The other problem for Speer is the form his
speedy trial objection took. We have long warned that a motion to dismiss, as


       2 He blames this late assertion of the right on the delay it took to appoint counsel. But
his trial counsel was appointed in March 2000, 17 months before the filing of the motion to
dismiss.


                                               7
    Case: 13-70001     Document: 00515529734     Page: 8   Date Filed: 08/17/2020


                                 No. 13-70001
                             Cons. w/ No. 19-70001
opposed to a request for a prompt trial, is “not a valid demand for a speedy
trial.” Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir. 1994); see also United
States v. Harris, 566 F.3d 422, 432 (5th Cir. 2009) (“A motion to dismiss the
indictment, particularly when, as here, it is filed over two years after the
indictment, is not evidence of a [desire to be tried promptly.]”). Speer’s lack of
diligence in asserting the right, and the form in which he finally did assert it,
thus weighs against a speedy trial violation.
      As for the final factor, the state court found that Speer did not suffer
prejudice from the delay. See also United States v. Bishop, 629 F.3d 462, 465
(5th Cir. 2010) (recognizing that a defendant must show “actual prejudice”
when the first three factors do not strongly weigh in favor of a constitutional
violation); see also Goodrum v. Quarterman, 547 F.3d 249, 260 (5th Cir. 2008)
(declining to presume prejudice when two of the first three factors strongly
favored the defendant). Speer raises arguments that at most show this factor
could go either way; he does not show—as he must under AEDPA—that the
state court’s assessment was unreasonable. Prejudice may mean “oppressive”
pretrial detention, “anxiety” arising from delay, or an “impaired” defense.
Barker, 407 U.S. at 532. “Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case skews the fairness of
the entire system.” Id.
      Speer argues that he suffered each form of prejudice, beginning with his
transfer from the general prison population to administrative segregation soon
after Dickerson’s murder.        But Speer was placed in segregation for
“disciplinary purposes,” not because he was indicted.          Speer, 2003 WL
22303983, at *3. He also relies on that segregation for his “enhanced” anxiety
attributable to the delay, but “generalized expressions of anxiety and concern




                                        8
    Case: 13-70001     Document: 00515529734     Page: 9     Date Filed: 08/17/2020


                                 No. 13-70001
                             Cons. w/ No. 19-70001
amount to little more than a nominal showing of prejudice.” Goodrum, 547
F.3d at 263.
      That leaves the heart of the prejudice inquiry: whether the nearly two-
year delay impaired Speer’s defense. According to Speer, a critical witness
known only as “Ellis”—an inmate who gave the prosecution an incriminating
letter—was out of prison and could not be located when trial started. Without
explaining why, Speer claims that the witness’s unavailability “greatly
prejudiced [his] ability to mount an effective defense.” It is Speer’s burden to
explain how that witness’s testimony “would have materially aided his case.”
Turner v. Estelle, 515 F.2d 853, 860 (5th Cir. 1975). He does not try to do so
by contending that the witness would have contradicted the other inmates’
testimony that Speer authored the incriminating letter. Indeed, the very
opposite could have been true: the witness could have confirmed that Speer
wrote the letter. At most, Speer has shown that he might have been prejudiced
by the witness’s unavailability. The possibility of prejudice is not enough,
United States v. Loud Hawk, 474 U.S. 302, 315 (1986), especially when Speer
has the AEDPA burden of showing that the state court could not have
reasonably ruled against him.
      The AEDPA relitigation bar dictates the outcome of this speedy trial
claim. Even if Speer can show that the state court could have ruled in his favor
as a de novo matter, he has not come close to showing that its balancing of the
speedy trial factors to reach the opposite outcome was unreasonable. As a
result, a federal court cannot grant relief on this claim.
                                       III.
      Speer also argues that he is entitled to habeas relief because the
prosecution suppressed impeachment evidence. The evidence relates to Bruce
Innes, a fellow inmate and Texas Mafia member. Innes gave prosecutors



                                        9
   Case: 13-70001     Document: 00515529734     Page: 10    Date Filed: 08/17/2020


                                 No. 13-70001
                             Cons. w/ No. 19-70001
incriminating letters from Speer and testified that Speer admitted to killing
Dickerson. Speer argues that the prosecution suppressed documents that
could have impeached Innes.
   Recall that Speer did not pursue this claim until a successive state habeas
application. After obtaining trial court findings on the availability of the Brady
claim in earlier proceedings, the Texas Court of Criminal Appeals rejected this
claim under the state’s abuse-of-the-write rule. See TEX. CODE CRIM. PROC.
ANN. art. 11.071, § 5(a)(1).     That determination is an “independent and
adequate” state ground for rejection of the federal claim that we must honor
unless Speer can show cause and prejudice to overcome the procedural bar.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
   For Brady claims, the cause and prejudice inquiries largely parallel the
merits. Banks v. Dretke, 540 U.S. 668, 691 (2004). Speer can show “cause” if
“the reason for his failure to develop facts in state-court proceedings was the
State’s suppression of the relevant evidence.” Id. And he can show “prejudice”
if “the suppressed evidence is ‘material’ for Brady purposes.” Id.
   We conclude that even if Speer can show cause—that is, suppression of
impeachment evidence—he cannot show prejudice. Impeachment evidence is
material “only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985). We do not
consider the suppressed evidence in a vacuum.           Instead, its materiality
“depends almost entirely on the value of the [undisclosed] evidence relative to
the other evidence mustered by the [S]tate.” Rocha v. Thaler, 619 F.3d 387,
396 (5th Cir. 2010) (quotations omitted).        Evidence that “provides only
incremental impeachment value . . . does not rise to the level of Brady
materiality.” Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005).



                                       10
   Case: 13-70001     Document: 00515529734     Page: 11   Date Filed: 08/17/2020


                                 No. 13-70001
                             Cons. w/ No. 19-70001
      The state court found that only the following three pieces of evidence
were suppressed:
   1. an investigator’s notes detailing actions that Innes took to help
      investigators obtain evidence against Speer;

   2. an investigator’s letter to a correctional officer saying that Innes was,
      among other things, assisting with the Dickerson investigation,
      corresponding with the investigator, and providing information about
      Texas Mafia activities; and

   3. Innes’s letter to an investigator attaching correspondence from one of
      Speer’s codefendants and asking to be released from administrative
      segregation into the general prison population.

      Speer’s problem is that his trial counsel had ample other evidence that
revealed even greater concerns with Innes’s credibility: Innes received
“sweetheart” plea deals in exchange for his testimony against Speer, he
communicated with other witnesses, and he had investigators request
improvements in his prison conditions and a transfer to another facility.
Prosecutors fronted some of these benefits on direct examination.         So the
suppressed documents were, at most, “of marginal value to the defense
and . . . cumulative with already presented impeachment evidence.” Murphy
v. Davis, 901 F.3d 578, 598 (5th Cir. 2018). And given that four other inmates
corroborated Innes’s testimony, there is not a reasonable probability that the
marginally incremental impeachment value of the suppressed information
would have changed the outcome. See Bagley, 473 U.S. at 682. The district
court correctly rejected this claim.
                                       IV.
      That brings us to the ineffective assistance claim that was the subject of
our earlier remand. Unlike the two we just addressed, this claim is only at the
certificate of appealability stage.    An appeal should be authorized if “the
applicant has made a substantial showing of the denial of a constitutional


                                        11
   Case: 13-70001       Document: 00515529734   Page: 12   Date Filed: 08/17/2020


                                  No. 13-70001
                              Cons. w/ No. 19-70001
right.” 28 U.S.C. § 2253(c)(2). That means reasonable jurists “could disagree”
with the district court’s analysis or could conclude the issues otherwise
“deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In a capital case, any doubt is resolved in favor of granting a
COA. Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir. 2005).
      Given that any doubts should be resolved in favor of authorizing an
appeal, we will grant a COA on the ineffective assistance claim. It involves
difficult procedural questions given the unusual remand the prior panel
ordered. The district court’s ground for rejecting the claim—that Speer could
not show prejudice to overcome a procedural default of the claim—is also at
least debatable given that the prejudice inquiry asks whether “at least one
juror would have struck a different balance” at the sentencing phase had it
heard the mitigating evidence counsel did not present. Wiggins v. Smith, 539
U.S. 510, 537 (2003).
      Speer also appeals two issues relating to this claim that do not require a
COA: the level of funding and the lack of an evidentiary hearing. See Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016) (no COA needed to appeal denial
of a hearing); Barraza v. Cockrell, 330 F.3d 349, 351 (5th Cir. 2003) (no COA
needed to challenge funding). Because of the potential overlap of these issues
with the merits ruling on the ineffective assistance claim, we will decide these
issues when we resolve the underlying claim.
                                      ***
      We AFFIRM the denial of habeas relief on the speedy trial and Brady
claims. We GRANT a COA authorizing an appeal of the ineffective assistance
claim.




                                       12
