                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 05a0425p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                     X
                             Petitioner-Appellant, -
 DAVID A. MAPLES,
                                                      -
                                                      -
                                                      -
                                                          No. 04-1880
          v.
                                                      ,
                                                       >
 JIMMY STEGALL, Warden,                               -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Eastern District of Michigan at Detroit.
                   No. 00-71718—Victoria A. Roberts, District Judge.
                                          Argued: May 31, 2005
                                 Decided and Filed: October 25, 2005
               Before: MOORE and COOK, Circuit Judges; GWIN, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Craig A. Daly, Detroit, Michigan, for Appellant. Laura Graves Moody, OFFICE OF
THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Craig A. Daly,
Detroit, Michigan, for Appellant. Brad H. Beaver, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        GWIN, District Judge. This case comes before us on a second appeal, after we had earlier
remanded the case to the district court to address a single issue: whether, as part of Petitioner David
Maples’s ineffective-assistance-of-counsel claim, his Sixth Amendment speedy trial claim had merit.
In his initial habeas petition, Petitioner claimed a violation of his right to effective assistance of
counsel. He complained that his trial counsel provided ineffective assistance by advising him that
his guilty plea reserved his speedy trial claim for appeal, when in reality it did not. Maples claims
that, but for his counsel’s deficient advice, he would have insisted on going to trial rather than plead
guilty.



        *
          The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                       1
No. 04-1880               Maples v. Stegall                                                                     Page 2


        We earlier found that trial counsel’s performance had indeed been deficient. We also found
that Petitioner had satisfied his burden to show a reasonable probability that, but for counsel’s
erroneous advice, he would have gone to trial. Maples v. Stegall, 340 F.3d 433, 439-40 (6th Cir.
2003) (Maples I). As a result, we determined that “on the surface,” Petitioner had satisfied the
prejudice prong of the ineffective-assistance test outlined in Strickland v. Washington, 466 U.S. 668
(1984); Hill v. Lockhart, 474 U.S. 52, 59 (1985). We also noted, however, that Hill advised us to
consider the merits of the underlying claim in fully adjudicating the prejudice inquiry. Maples I, 340
F.3d at 440. We therefore remanded to the district court to determine, in the first instance, the merits
of Petitioner’s speedy trial claim.
        Upon remand, the district court ruled in favor of the Respondent, finding that Petitioner’s
speedy trial claim had no merit and thus that Petitioner had suffered no violation of his right to
effective assistance of counsel. We now REVERSE.
                                               I. BACKGROUND
        Petitioner David Maples (“Maples”) complains that Michigan violated his constitutional right
to a speedy trial when it failed to bring him to trial until over two years after his arrest. The facts
relevant to Petitioner’s speedy trial claim are as follows:
                                  A. Initial Delays and Entrapment Motion
         On August 4, 1993, Petitioner and his co-defendant, James Murphy, were arrested for
delivery of and conspiracy to distribute over 50 grams of cocaine. The Petitioner was detained and
remained in state custody. On August 6, 1993, the state prosecutor filed the complaint and warrant.
The state trial court set a trial date of October 19, 1993, but continued the trial until November trial
call, at the request of co-defendant Murphy. Around this time, the court became aware that co-
defendant Murphy was contemplating an entrapment defense. In its October 19, 1993 disposition
continuing Maples’s trial date, the court ordered Petitioner to file all motions within 10 days, and
set co-defendant Murphy’s entrapment hearing for the trial date.
         On November 2, 1993, in preparation for trial, Petitioner Maples filed a pretrial motion for
supplemental discovery and a motion in limine. The motion in limine sought to exclude Petitioner’s
prior criminal record on grounds that it would prejudice Petitioner, particularly as he planned to
testify at trial. Nothing suggests this motion was complicated or presented any unique issue.
        On December 9, 1993, the trial court continued the trial until January 11, 1994.1 On January
10, 1994, Petitioner moved to continue the trial date because his attorney was unavailable. This
resulted in a short delay of only 9 days, as the trial was re-set for January 19, 1994.
       On January 19, 1994, the state trial court again continued the trial date until February 4,
1994, at the co-defendant’s request to file motions.     On February 3, 1994, the eve of trial, co-
defendant Murphy filed his entrapment motion.2 A hearing on the co-defendant’s entrapment
motion began on February 4, 1994, and continued on February 23-25, 1994, thereby delaying trial
even further. The trial court then gave the state and co-defendant Murphy 30 days to file proposed



         1
          On December 9, 1993, Petitioner joined his co-defendant’s motion for an alleged violation of the “12-day
rule.” Neither the record nor the parties’ briefs explain what this 12-day rule refers to.
         2
          Initially, Petitioner Maples did not join the motion. He only joined the motion on April 29, 1994, almost three
months after co-defendant Murphy filed the motion and over six months after the court was aware that co-defendant was
contemplating raising the defense.
No. 04-1880            Maples v. Stegall                                                          Page 3


findings of fact and conclusions of law. In contrast to Petitioner Maples, who remained in custody
during this time, co-defendant Murphy was released on bond.
        After beginning the hearing on co-defendant Murphy’s entrapment defense on February 4,
1994, and continuing it on February 23-25, 1994, the state trial court scheduled argument on the
entrapment motion on March 16, 1994, and ordered that transcripts be prepared. The hearing
concluded on April 11, 1994, on which date Petitioner testified in support of the entrapment motion.
On April 29, 1994, Petitioner joined the motion and filed a brief in support. On June 3, 1994, the
trial was continued again pending the court’s decision on the entrapment motion. It appears the co-
defendant did not file a brief in support of the motion until June 2, 1994. On July 14, 1994, the trial
court finally issued an opinion denying the Petitioner’s and co-defendant’s motion. The Michigan
state court thus delayed the trial over five months to decide an entrapment claim. Petitioner
remained in custody during most of that period.
                                  B. Petitioner’s Motion for Release
        In the meantime, on April 8, 1994, Petitioner filed a motion for release on personal bond,
arguing that he had been incarcerated for 250 days without trial, well beyond the 180 days allowable
under Michigan law. On April 11, 1994, the court ordered the prosecution to file a written response
to the motion within 10 days. On April 29, 1994, Petitioner filed a motion for immediate release,
noting that the prosecution had not yet filed its response. On May 5, 1994, the prosecutor filed an
opposition to the motion for immediate release. On May 9, 1994, the court held a hearing and
granted Petitioner’s motion for immediate release. Petitioner, however, was sent directly to St. Clair
County for a probation violation, and on May 23, 1994, was sentenced to 2 ½-5 years in the
Department of Corrections. Petitioner was re-incarcerated and spent the next seven months in the
St. Clair County Jail.
                                  C. Summer 1994 - Summer 1995
        As mentioned, the state court adjourned the trial date of June 3, 1994, pending resolution of
the entrapment motion, and finally ruled on that motion on July 14, 1994. On July 29, 1994, the trial
was continued yet again. Although the record is somewhat unclear, it appears that Michigan caused
this continuance by failing to transport Petitioner Maples from the correctional institution to the trial.
After continuing the trial in July 1994, it is nowhere clear why the trial court failed to reschedule
the case for trial in August, September, or October 1994.
        On November 18, 1994, and again on December 7, 1994, co-defendant Murphy moved to
adjourn the trial. Petitioner Maples did not join these motions to continue. Indeed, on December
24, 1994, Petitioner wrote a pro se letter to the trial court, requesting new counsel, and complaining
that his counsel had not filed a speedy trial claim at the end of November. In early January 1995,
Maples filed a pro se motion seeking dismissal for violations of the 180-day rule and his
constitutional speedy trial right.
       On April 28, 1995, the Court re-set Petitioner’s trial for June 22, 1995, due to trial in another
matter. On June 27, 1995, the court continued the trial once again until August 29, 1995, providing
no reason. On August 22, 1995, Petitioner again filed a motion to dismiss for violations of the 180-
day rule and his constitutional speedy trial right.
        On August 29, 1995, the trial was again continued until September 19, 1995, because “plea
negotiations failed.” The Respondent admits that these plea negotiations involved co-defendant
Murphy, not Maples. On September 19, 1995, co-defendant Murphy pled guilty. Also on
September 19, 1995, the Court denied Petitioner’s motion to dismiss. On September 20, 1995, the
date of Petitioner’s trial, Petitioner reaffirmed his desire to reject the prosecution’s plea offer.
Petitioner also expressed his intention to call co-defendant Murphy as a witness. Thereafter, jury
No. 04-1880           Maples v. Stegall                                                          Page 4


selection began. Before jury selection was complete, Petitioner again moved for dismissal based
on a speedy-trial violation. Following jury selection, Petitioner pled guilty.
                                   II. STANDARD OF REVIEW
       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal habeas
court may grant an application for a writ of habeas corpus on behalf of a state prisoner only where
a claim adjudicated on the merits in state court:
       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or (2) resulted in a decision that was based upon an
       unreasonable determination of the facts in light of the evidence presented in the State
       court proceeding.
28 U.S.C. § 2254(d) (1996).
        In Maples I, we determined that our review of Maples’s ineffective-assistance-of-counsel
claim was not circumscribed by the state court’s conclusion – as normally required by AEDPA –
because the state court had not adjudicated the matter on the merits. See Maples I, 340 F.3d at 437
(citing Wiggins v. Smith, 539 U.S. 510 (2003)). We therefore reviewed the legal issue de novo.
        This case is again before us on a charge of ineffective assistance of counsel, and for the same
reasons as in Maples I, we are not bound by any state court conclusion. We therefore review
Maples’s claim de novo. See Smith v. Hofbauer, 312 F.3d 809 (6th Cir. 2003) (“Whether
[Petitioner] was deprived of his right to effective assistance of counsel is a mixed question of law
and fact that is reviewed de novo.”) (citation omitted).
        In determining whether Petitioner was prejudiced by his counsel’s ineffective assistance, we
review the merits of his underlying claim. See Maples I, 340 F.3d at 440. In determining the merits
of a speedy trial claim, we review questions of law de novo, and questions of fact under the clearly
erroneous standard. United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003).
                                          III. ANALYSIS
        The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy trial and public trial.” U.S. Const. amend. VI. The right to a speedy trial
applies to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213
(1967).
        In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court articulated four factors
that must be considered in determining whether the right to a speedy trial has been violated: (1)
whether the delay was uncommonly long; (2) the reason for the delay; (3) whether the defendant
asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant. No one of
these factors constitutes a “necessary or sufficient condition to the finding of a deprivation of the
right of speedy trial.” Barker, 407 U.S. at 533. “Rather, they are related factors and must be
considered together with such other circumstances as may be relevant.” Id.
                                       A. Length of the Delay
       The length of the delay is a threshold requirement. If the length of the delay is not
“uncommonly long,” then judicial examination ends. Doggett v. United States, 505 U.S. 647, 652
(1992). The length of the delay is measured from the date of the indictment or the date of the arrest,
whichever is earlier. United States v. Marion, 404 U.S. 307, 320 (1971); Redd v. Sowers, 809 F.2d
No. 04-1880              Maples v. Stegall                                                                   Page 5


1266, 1269 (6th Cir. 1987). A delay approaching one year is presumptively prejudicial and triggers
application of the remaining three factors. Doggett, 505 U.S. at 652 n.1. Here, Petitioner suffered
a delay of approximately twenty-five (25) months between his arrest and the date of his trial and
guilty plea. The Respondent does not dispute that this period meets the “uncommonly long”
standard, particularly given the uncomplicated nature of the narcotics charge. We therefore proceed
to examine the other three factors.
                                            B. Reason for the Delay
        The second factor that Barker advises us to consider is the reason for the delay. In
considering this factor, we weigh some reasons more heavily than others. For instance, government
delays motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily
against the government, while “more neutral” reasons such as negligence or overcrowded dockets
weigh against the state less heavily. United States v. Schreane, 331 F.3d 548, 553-54 (6th Cir. 2003)
(citing cases). The purpose of the inquiry is to determine “whether the government or the criminal
defendant is more to blame for [the] delay.” Doggett, 505 U.S. at 651.
        Here, Respondent Stegall contends that, of the 25-month delay, one-half was attributable to
the Petitioner. Respondent further contends that the rest of the period, while not attributable to
Petitioner, is also not attributable to the state, because the delay was motivated neither by bad faith
nor harassment. Thus, at most, contends Respondent, this factor should be “neutral,” weighing in
neither party’s favor. See United States v. Schreane, 331 F.3d 548, 554-55 (6th Cir. 2003) (finding
that each of two roughly equal time periods favored a different party).
        We are unconvinced by Respondent’s arguments. The delay in the first 9-10 months is only
minimally attributed to Maples, instead largely caused by a combination of co-defendant’s requests
for continuances and the Michigan trial court’s unjustified delay in ruling on the entrapment motion.
The remaining period is entirely attributable to the court’s unexplained continuances.
        The Respondent argues that Petitioner is accountable for the initial 9- to 10-month delay,
including the time it took the court to adjudicate the co-defendant’s entrapment motion, because
Petitioner eventually joined in co-defendant Murphy’s entrapment defense. However, co-defendant
Murphy did not actually file his motion to dismiss based on entrapment until February 3, 1994.
Although in October 1993, the court was aware that co-defendant Murphy intended to present an
entrapment defense, the docket clearly reflects that the court did not adjudicate the motion until after
it was filed. Moreover, once the motion was filed, the trial court had ample time to rule before
Maples joined, and his joining added nothing substantive to the issues at stake. Co-defendant
Murphy filed the entrapment motion on February 3, 1994, and a hearing was begun the next day
(also scheduled as the trial date). The Petitioner only joined the motion on April 29, 1994, almost
three months after the motion was filed. Yet the Michigan trial court took until July 18, 1994 to
decide the motion. At most, Petitioner  can be held responsible for the 2 1/2-month period between
April 29, 1994 and July 18, 1994.3
       While in some cases the adjudication of pretrial motions justifies delay, in this case, there
were very few motions, and nothing indicates that Defendant joined or filed them for purposes of
delay. Compare United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997) (over 100 pretrial
motions filed) and United States v. O’Dell, 247 F.3d 655, 668 (6th Cir. 2001) (parties’ motions “all
submitted to some strategic end”). Indeed, in the midst of the entrapment adjudication, Petitioner
moved for personal bond, thus asserting his speedy trial right. This assertion, although also analyzed

         3
           We do not decide under what circumstances one defendant who delays joining a codefendant’s motion should
be held responsible for the full amount of time taken in ruling on the motion. We leave that issue for another day. In
this case, however, we find the delay substantial enough to attribute only the latter portion to Petitioner.
No. 04-1880               Maples v. Stegall                                                                      Page 6


under a separate inquiry, functions as a factor in his favor during this time period. See Schreane,
331 F.3d at 555 (counting defendant’s failure to assert speedy trial right a reason weighing against
the defendant in balancing the second factor).
        The Respondent further suggests that any delay caused by the co-defendant, including delays
related to the adjudication of the entrapment motion, should be weighed against the Petitioner and
in the state’s favor. In contending that the Petitioner should be saddled with the delay occasioned
by his co-defendant, Respondent relies on cases interpreting the Speedy Trial Act and argues that
reasonable delay attributable to the co-defendant should be attributable to Petitioner. See 18 U.S.C.
§ 3161(h)(7) (holding excludable “[a] reasonable period of delay when the defendant is joined for
trial with a codefendant as to whom the time for trial has not run and no motion for severance has
been granted”); United States v. Cope, 312 F.3d 757, 776-77 (6th Cir. 2002) (stating that, under
Speedy Trial Act, one speedy trial clock governs co-defendants, so “the excludable delay of one
defendant is ascribed to that of all of his codefendants”) (citing United States v. Culpepper, 898 F.2d
65, 66-67 (6th Cir. 1990)).
         We have found no cases that state definitively that the same principle should be applied in
the context of a constitutional speedy trial claim.4 A few cases addressing both the statutory and
the constitutional claim simply seem to take for granted, with no forceful discussion, that the co-
defendant’s delays implicate the defendant in the constitutional analysis as well. See, e.g., United
States v. Vasquez, 918 F.2d 329 (2d Cir. 1990) (after in-depth analysis of statutory requirement that
defendant must move to sever before co-defendant’s delays will be found unreasonable, concluding
perfunctorily that reason for delay favored government in constitutional analysis, because “most
of the 26 months at issue was consumed by consideration of defendants’ various pretrial motions”);
United States v. Fuller, 942 F.2d 454 (8th Cir. 1991) (failing to separately address constitutional
claim after finding, under statutory analysis, that “any delay caused in this particular case was due
in fact to the co-defendants’ various motions before trial and was reasonable”); Smith v. Richards,
1992 U.S. App. LEXIS 3043 (7th Cir. 1992) (implicitly applying state statutory requirement that a
defendant object to co-defendant’s requests for continuance, in rejecting petitioner’s argument,
under constitutional analysis, that continuances were not properly attributed to him).
        Although the above-cited cases do contain a measure of logic, contrary authority in this
circuit suggests a defendant is not necessarily responsible for his co-defendant’s decisions. In
United States v. Holyfield, 802 F.2d 846 (6th Cir. 1986), we concluded that under the statutory
analysis, a co-defendant’s interlocutory appeal disadvantaged the defendants, as “an exclusion
applicable to one defendant applies to all co-defendants.” Id. at 847 (quoting United States v.
Edwards, 627 F.2d 460, 461 (D.C. Cir. 1980)). In analyzing the constitutional claim, however, we
stated:
         The second [Barker] factor, reason for the delay, does, however, favor the
         Holyfields. The delay was caused by a codefendant’s appeal and was not induced by
         them nor did it involve them. They could have been tried soon after the first
         indictment. The government, however, chose to wait.
Id. at 848; see also United States v. Graham, 128 F.3d 372, 374 (6th Cir. 1997) (faulting district
court for delay due to appointing co-defendant’s counsel, and holding government responsible for
co-defendant’s intervening state trial).

         4
           The district court cited to United States v. DeJesus, 887 F.2d 114, 116 n.1 (6th Cir. 1989), reasoning that the
statutory requirement extends to the constitutional analysis, because “a claim which passes muster under the Speedy Trial
Act generally satisfies the requirements of the Sixth Amendment right to a speedy trial.” J.A. 189. This general
reasoning does not convince us that every requirement of the Speedy Trial Act applies as well to the constitutional
analysis. Moreover, there is no indication here that the delay would in fact survive the Speedy Trial Act.
No. 04-1880               Maples v. Stegall                                                                    Page 7


       In the context of Petitioner Maples’s case, we find the latter cases more persuasive. We
decline to require Petitioner to carry the full burden of his co-defendant’s delays, when the co-
defendant, who was out on bond, had less incentive than Petitioner to resolve the case. In addition,
nothing suggests that Petitioner induced or had anything to do with co-defendant’s decisions to
delay. Indeed, Petitioner effectively objected to the delay by asserting his speedy trial right before
he even joined the entrapment motion.
         Ultimately, as in Graham, the responsibility for countenancing the co-defendant’s delays in
this case must rest with the trial court. For instance, the record reflects that co-defendant Murphy
did not file his brief in support of the entrapment defense until June 2, 1994, the eve of the scheduled
trial date, whereas Petitioner filed his brief on April 29, 1994. Particularly as Petitioner had moved
for release from incarceration, the trial court should have been vigilant about the co-defendant’s
dilatory filing. As in Graham, the Michigan trial court “failed to assert itself in an attempt to move
the process along.” United States v. Graham, 128 F.3d 372, 373 (6th Cir. 1997). Considering the
circumstances, we find that very little of the period before July 1994, including periods caused by
co-defendant’s delays, should be imputed         to Petitioner. At most, Petitioner should be held
responsible for three months of the delay.5
        Once the entrapment motion was adjudicated, the ensuing delays were attributable to the
state. The district court faulted Petitioner for the July 29, 1994 continuance, but Respondent does
not dispute Petitioner’s contention that this continuance was actually due to the state’s failure to
bring Petitioner in from custody. The November 1994 and December 1994 trial dates were
continued at the request of co-defendant Murphy. These delays cannot fairly be attributed to
Petitioner Maples. Maples has produced evidence that he asked his counsel to raise a speedy trial
issue at the November 18, 1994, proceeding. Also, Petitioner has produced evidence tending to
show that he had asked his counsel to file for separate trials, which his counsel did not do. Given
these indicia of discontent, we do not hold Petitioner accountable for the co-defendant’s delays in
November 1994 and December 1994. See United States v. Holyfield, 802 F.2d 846-47 (6th Cir.
1986) (declining to attribute delay due to co-defendant’s appeal to defendants).
        Finally, once Petitioner sought new counsel and moved for dismissal on speedy trial grounds,
he could not be blamed for further delay. The court adjourned the matter several times during the
spring of 1995, often without giving a reason. Although “negligence and overcrowded dockets” do
not weigh as heavily against the state as does bad faith, the government must ultimately bear the
responsibility for such circumstances. See Barker, 407 U.S. at 531. The 14-month period between
July 1994 and September 1995, then, is attributable to the state.
        While Petitioner may be held responsible for some minimal part of the nine-month period
before July 1994, when the twenty-five months are considered as a whole, the reason-for-delay
factor tips strongly in Petitioner’s favor.
                           C. Petitioner’s Assertion of His Speedy Trial Rights
        The third factor is Petitioner’s assertion of his speedy trial rights. A “defendant’s assertion
of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the


         5
           We believe this determination to be circumstances-dependent and we do not find that delay associated with
a co-defendant’s motion to continue can never count against a defendant. In some circumstances, a defendant who late
joins a co-defendant’s motion for continuance could be found responsible for the time delay before he joined the motion.
In other circumstances, not. In deciding whether delay caused by a co-defendant’s motion should count, we will examine
whether the defendant objected to the continuance, whether the defendant moved the trial court to comply with speedy
trial requirements, whether the defendant moved for release, and whether the defendant’s position and interests are
aligned with the co-defendant.
No. 04-1880              Maples v. Stegall                                                                   Page 8


defendant is being deprived of the right.” Barker, 407 U.S. at 531-32. The Sixth Circuit recognizes
a request for bail as the functional equivalent of the request for a speedy trial. Redd v. Sowers, 809
F.2d 1266, 1271 (6th Cir. 1987); Cain v. Smith, 686 F.2d 374, 384 (6th Cir. 1982).
         Petitioner points to several instances in which he made clear his interest in a speedy trial.
On April 8, 1994, and again on April 29, 1994, Petitioner moved for release on bond. In those
motions, he cited a violation of Michigan’s  180-day rule and asserted that the delays in bringing the
case to trial were not attributable to him.6 Next, on December 24, 1994, Petitioner wrote a pro se
letter to the court, complaining that the 180-day rule had not been complied with after his re-
incarceration and complaining that his attorney had not raised the issue in November 1994. In
addition to the letter, on December 23, 1994, the Petitioner filed a pro se motion to dismiss, with
brief in support, for violation of his speedy trial right. Finally, on August 22, 1995, and
September 20, 1995, Petitioner moved again for dismissal on grounds of speedy trial violation.
        Respondent argues that the motion for release on bond should not be considered an assertion
of the speedy trial right, because it did not seek an advanced trial date, and in addition, was negated
by Petitioner’s joining the entrapment motion. Respondent further argues that the December
1994/January 1995 communications came five months after the entrapment motion was adjudicated
and therefore was untimely.
         We disagree that these failings undermine Petitioner’s assertions. As noted, this circuit has
recognized a request for bail as an assertion of a speedy trial right. Redd v. Sowers, 809 F.2d 1266,
1271 (6th Cir. 1987) (“[A] request for reduction of bail is equivalent to a request for a speedy
trial.”); Cain v. Smith, 686 F.2d 374, 384 (6th Cir. 1982). In this case, in his bond motions,
Petitioner cited specifically to the Michigan rule requiring that the accused be brought to trial. As
to the January 1995 motion to dismiss, Petitioner calculated his 180 days starting from May 23,
1994, when he was incarcerated for his parole violation, and determined that the period would be
complete on November 22, 1994. According to his letter to the court, he asked counsel to raise the
issue at the November 18, 1994, court proceeding. Just over a month later, he filed communication
with the trial court. Considering the short gap of only one month, Petitioner was not untimely in
filing the motion to dismiss at the beginning of January 1995.
       Indeed, given how vigorously Petitioner asserted his right over the course of months from
April 1994 to September 1995, we find that this factor weighs strongly in Petitioner’s favor.
                                                   D. Prejudice
        The fourth factor to be analyzed is whether Michigan’s unreasonable delay caused prejudice
to the defendant. Petitioner first argues that he need not show any actual prejudice, because the
delay in his case was presumptively prejudicial. We note that “presumptively prejudicial” for
purposes of triggering the Barker four-factor inquiry is different from “presumptively prejudicial”
for purposes of assessing the prejudice prong. The first only requires that the delay have approached
one year. The latter concerns whether the delay was excessive.
                                           1. Presumptive Prejudice
        The Supreme Court has stated that the accused need not point to “affirmative proof of
particularized prejudice” in every case. Doggett v. United States, 505 U.S. 647, 655 (1992). Rather,


         6
          The trial court granted Maples’s April 29, 1994 motion, but he was sent from Macomb County Jail to St. Clair
County Jail to await a hearing on a charge of violating probation. The hearing was held on May 9, 1994, and he was
re-incarcerated on May 23, 1994. Petitioner was released from prison on January 10, 1995.
No. 04-1880           Maples v. Stegall                                                         Page 9


stated the Court, “we generally have to recognize that excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id.
         Presumption of prejudice is not automatically triggered, however, in every case in which
there is a delay. See United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000). When the accused
is unable to articulate the harm caused by the delay, the reason for the delay helps determine whether
the delay was presumptively prejudicial. For example, where, as here, the delay was due to state
negligence,
       the weight we assign to official negligence compounds over time as the presumption
       of evidentiary prejudice grows. Thus, our toleration of such negligence varies
       inversely with its protractedness, and its consequent threat to the fairness of the
       accused’s trial. . . . [However,] to warrant granting relief, negligence unaccompanied
       by particularized trial prejudice must have lasted longer than negligence
       demonstrably causing such prejudice.
Doggett, 505 U.S. at 657 (citation omitted); see also id. at 655-56 (“[Presumptive prejudice] is part
of the mix of relevant facts, and its importance increases with the length of the delay.”). In Doggett,
the Court found sufficiently excessive a delay “six times as long as that generally sufficient to
trigger judicial review.” Id. at 658. In other cases, delays have been similarly long. See United
States v. Graham, 128 F.3d 372, 376 (6th Cir. 1997) (8 years); United States v. Brown, 169 F.3d
344, 351 (6th Cir. 1999) (5 ½ years).
        In the Sixth Circuit, no presumption has been found where delay due to government fault is
considerably less than that in Graham or in Brown, or where the government can persuasively rebut
the presumption by showing that the delay did not impair the defendant’s defense. See, e.g., Darnell
v. Berry, 1999 U.S. App. LEXIS 15625 (6th Cir. 1999) (unpublished decision) (18-month delay not
presumptively prejudicial); United States v. Cook, No. 98-5457, 1999 U.S. App. LEXIS 10645, at
*3 (6th Cir. 1999) (unpublished decision) (16-month period attributable to government not
presumptively prejudicial); United States v. Love, 1997 U.S. App. LEXIS 27928 (6th Cir. 1997)
(unpublished decision) (17-19 month delay attributable to government – out of total 23 or 32 months
– was significant but sufficiently rebutted because government proved delay did not impair
defendant’s defense); United States v. Mundt, 29 F.3d 233 (6th Cir. 1994) (although government
responsible for one-half of 3½-year delay, government’s diligent efforts to locate and prosecute
defendant favored government); see also United States v. Mulligan, 520 F.2d 1327 (6th Cir. 1975)
(25-month total delay did not give rise to speedy trial violation where only part of the total delay was
due to government, and defendant had not timely asserted his right); United States v. Freeding, 663
F.2d 1073 (6th Cir. 1981) (unpublished decision) (upholding denial of speedy trial claim where
delay was 21 months); Dean v. Marshall, No. 88-3515, 1989 U.S. App. LEXIS 10755 (6th Cir.
1989) (unpublished decision) (in pre-Doggett case, requiring actual prejudice even where delay was
5 years); United States v. Love, 1999 U.S. App. LEXIS 2053 (6th Cir. 1999) (unpublished decision)
(discussing only actual prejudice, even where delay was 21 months).
        Here, Petitioner suffered a delay of 25 months, 22-24 months of which can be attributed to
the state. Although this period is longer than that in the above-cited cases, we need not determine
whether the delay here is presumptively prejudicial. We find the fourth factor favors Petitioner,
because he has produced sufficient evidence to show that he suffered actual prejudice.
                                          2. Actual Prejudice
       The Supreme Court has identified three defense interests a court should consider when
determining actual prejudice in speedy trial cases: (1) oppressive pretrial incarceration; (2) anxiety
and concern of the accused; (3) the possibility that the defense will be impaired. Barker, 407 U.S.
No. 04-1880           Maples v. Stegall                                                        Page 10


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. If witnesses die or disappear during a delay,
the prejudice is obvious.” Id. But see Doggett, 505 U.S. at 659-62 (Thomas, J., dissenting) (noting
contrary precedent stating that the liberty interests – and not the concern with impairment of the
defense – are at the core of the speedy trial right).
        In this case, Petitioner appears to have suffered all three forms of prejudice. As to the first,
Petitioner was subject to pretrial incarceration twice: between August 1993 and May 1994, and
again between May 1994 and January 1995. The district court suggests that the latter period was
not particularly oppressive, since Petitioner served that sentence due to a prior parole violation and
not because he was awaiting trial on the narcotics charge. Citing Michigan law, the district court
wrote, “The sentence in this narcotics case would not have run concurrently to the sentence he was
serving for another felony even if Petitioner had been tried and sentenced earlier.” J.A. 193.
        As Petitioner points out, however, the relevant Michigan provision stated that a consecutive
sentence would only have been required if the first term of imprisonment was for “the commission
of another felony.” Mich. Comp. Laws § 333.7401(3) (1995) (emphasis added). Here, Petitioner
was in custody on a probation violation for receiving and concealing stolen property, not for
commission of another felony. Thus, he was eligible to receive a concurrent sentence. We find that
the incarceration harmed his liberty interest.
        As to the second defense interest: Petitioner’s repeated invocation of Michigan’s 180-rule,
requiring that the accused be tried within 180 days, suggests that he suffered “anxiety and concern.”
See, e.g., David Maples, Letter to the Trial Court, December 24, 1994, J.A. 156; see Barker, 407
U.S. at 531 (“The frequency with which the defendant asserts his speedy trial right is probative
indication of the prejudice he is suffering.”). In another letter to the court prior to sentencing,
Maples stated:
       I have lost everything of any value, monetary, and all personal relationships
       regarding my Ex and my children. This has put more than a little stress and strain
       on all concerned. My mother, my wife, my children, and myself! I don’t know how
       much I am to suffer for an offense I’m only guilty of being ignorant of Mr. Murphy’s
       business adventures!!!
J.A. 108. It is clear that Petitioner suffered “anxiety and concern.”
        Finally, the third defense interest requires examination of impairment to Petitioner’s defense.
Petitioner alleges that two key witnesses were not available to testify, due to the delay in bringing
him to trial: co-defendant James Murphy, and Larry Roberts. Roberts’s case was dismissed at the
preliminary examination for lack of evidence, and by September 1995, defense counsel could not
locate him. Co-defendant Murphy was unavailable to testify because his plea agreement with the
government required that he not testify on behalf of Petitioner. We discuss each below.
                                   a. Inability To Locate Roberts
         Larry Roberts was unavailable to testify because in September 1995 defense counsel was
unable to locate and contact him. The value of Roberts’s testimony – and thus how much his
unavailability hurt Petitioner – is strongly disputed. In an affidavit dated January 27, 2004,
Petitioner avers that Roberts visited him while Petitioner was at Macomb Regional Facility and told
Petitioner he would testify on Petitioner’s behalf. The record also includes a letter, written by co-
defendant Murphy on August 9, 1993, indicating that Roberts was present at the scene and could
attest to Petitioner’s actions:
No. 04-1880           Maples v. Stegall                                                        Page 11


       I made arrangements to be met by my friend Dave Maples to discuss some upcoming
       roofing work we could both be involved in and to loan him some money so he could
       purchase a work truck. It is my understanding that [Maples] arranged for his friend
       Larry Roberts to give him a ride to the bar with the promise of gas money and a
       couple drinks. I now state that neither Roberts [n]or Maples gave me any controlled
       substance, nor did they aid me in the delivery of such to any other individual.
James Murphy, Letter, Aug. 9, 1993, J.A. 90; see also David Maples, Letter to Court Prior to
Sentencing, J.A. 106-07 (describing incident, including interaction with Roberts).
        Respondent claims that Roberts could not have provided any exculpatory testimony.
Respondent states that when both men were in the police station after arrest, Roberts called out to
Petitioner Maples, saying, “Tell them I had nothing to do with it.” Maples, purports Respondent,
replied, “He didn’t.” Respondent’s Br. at 12 (citing Pl. Br. in Opp. to Mot. to Dismiss, J.A. 168).
From this, Respondent suggests, it is clear that Roberts never denied any wrongdoing by Petitioner,
only as to himself. Respondent further suggests that we should infer from this statement that
Petitioner must have been involved in the wrongdoing, otherwise he could not have known that
Roberts was not involved. Respondent also argues – and the district court agreed – that Roberts’s
testimony was not guaranteed: Roberts’ attorney apparently told the prosecutor that he would advise
his client against testifying.
        Respondent has provided no documentation of Roberts’s purported statement at the police
station, other than the state’s own brief in opposition to the April 1994 motion for release.
Petitioner, for his part, strongly disputes the state’s version of the facts. In his January 2004
affidavit, he denies having responded, “He didn’t.” He avers that, instead, he stated, “Shut up,” in
response to Roberts’s request.
       Whether Petitioner said, “He didn’t,” or “Shut up,” from this limited record, we decline to
infer Petitioner’s culpability or speculate as to what a jury might find. Because Roberts was
apparently present at the scene, and was in contact with Petitioner at around the time of the crime,
he could very well have provided beneficial testimony. Cf. Redd v. Sowers, 809 F.2d 1266, 1272
(6th Cir. 1987) (“[A]ppellee was placed in a disadavantaged position in attempting to locate
[favorable witnesses] to secure this testimony thirty-two months after his arrest . . . [A]ppellee would
have had a much better chance of locating the witnesses in 1981 than in 1983.”).
         While Petitioner has not presented the strongest evidence that Roberts would have appeared
to testify on his behalf (Petitioner’s affidavit was signed in January 2004), Respondent’s evidence
to the contrary is even weaker. The district court accorded significant weight to a letter, written by
Roberts’s attorney, stating that he would advise Roberts not to testify on behalf of Petitioner. As
with Roberts’s post-arrest statement, this letter is not before us. More importantly, however, such
a communication provides limited probative value in determining whether Roberts would or would
not have testified. As the state itself pointed out, Petitioner, too, was advised by his counsel not to
testify on behalf of his co-defendant (in the entrapment hearing), yet he insisted on testifying
anyway. See State’s Resp. to Def. Mot. For Imm. Release, J.A. 141.
         Based on the record before us, we think it sufficiently likely that Roberts would have
testified on Petitioner’s behalf that Petitioner’s inability to contact Roberts in September 1995
prejudiced him.
                         b. Unavailability of Co-defendant James Murphy
        In addition, Petitioner was prejudiced by the unavailability of co-defendant Murphy to testify
at his trial. As mentioned, co-defendant Murphy was unavailable because his plea agreement
required that he not testify on behalf of Maples: “Part of the [plea] agreement consisted of my not
No. 04-1880           Maples v. Stegall                                                        Page 12


testifying at the criminal trial of, David Maples, in the above mentioned case. That if I choose [sic]
to testify at that trial I would be facing a more severe sentence for doing so.” J.A. 92. It is
undisputed that Murphy’s unavailability hurt Petitioner, as Murphy’s testimony would have
absolved Petitioner of any guilt. See Respondent’s Br. 13 (“It may very well be that Murphy
pleading guilty hurt Petitioner’s chances at trial. ”); James Murphy, Letter, August 9, 1993 (stating
facts supporting Petitioner’s innocence – “I now state that neither Roberts [n]or Maples gave me any
controlled substance, nor did they aid me in the delivery of such to any other individual.”).
         Indeed, Murphy’s plea condition may have violated Petitioner’s right to compulsory process.
We have previously stated that “governmental conduct which amounts to a substantial interference
with a witness’[s] free and unhampered determination to testify will violate due process.” United
States v. Foster, 128 F.3d 949, 953 (6th Cir. 1997). While a prosecutor can warn a potential defense
witness about the consequences of perjury, a prosecutor cannot threaten to reinstate previous charges
against that witness. See, e.g., United States v Henricksen, 564 F.2d 197 (5th Cir. 1977) (holding
government violated due process when it told the co-defendant that his plea agreement would be
void if he testified for a co-defendant); United States v. Vavages, 151 F.3d 1185, 1194 (9th Cir.
1998) (defendants’ right to compulsory process violated when prosecutor threatened to prosecute
defendant's wife for perjury or withdraw her plea agreement if she testified); United States v.
Golding, 168 F.3d 700, 702-04 (4th Cir. 1999) (defendant’s right to compulsory process violated
when prosecutor threatened to initiate federal marijuana possession charges against defendant's wife
if she testified on defendant's behalf). Petitioner was prepared to go to trial long before co-defendant
Murphy entered a plea – and plea negotiations – prohibiting him from testifying on behalf of
Petitioner. In addition, Murphy gave testimony that favored Petitioner at the entrapment hearing on
February 24, 1994. Had the state tried Petitioner in a timely manner, blocking Murphy’s testimony
would likely have been no more imperative to the state than it had been in February 1994.
       We therefore find that co-defendant Murphy’s unavailability prejudiced Petitioner. Because
we find that Petitioner was prejudiced both by the offense to his liberty interests as well as by
impairment to his defense, this factor weighs in his favor.
        To sum up our analysis under Barker, we find that (1) the delay was uncommonly long;
(2) the reason for the delay weighs in favor of the Petitioner; (3) Petitioner’s timely, repeated, and
vigorous assertion of his speedy trial right weighs strongly in his favor; and (4) Petitioner was
prejudiced by the delay. Considering all the factors together, we find that Petitioner was denied his
right to a speedy trial.
        Because we find that Petitioner’s speedy trial right has merit, we find, under the analysis
mandated by Hill v. Lockhart, 474 U.S. 52, 59 (1985), that he was indeed prejudiced by his
counsel’s deficient performance in advising him that he could simultaneously take the guilty plea
and retain his speedy trial claim for appeal. See Maples I, 340 F.3d at 440-41. We thus find that
Petitioner Maples suffered a Sixth Amendment violation of his right to effective assistance of
counsel.
                                           CONCLUSION
       For the foregoing reasons, we REVERSE the district court’s decision and REMAND this
matter to the district court with directions to issue the Writ of Habeas Corpus and for further
proceedings consistent with this opinion.
