           Case: 12-15517   Date Filed: 10/24/2013   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15517
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:09-cv-01473-SLB-RRA

BRENT ANDRE PARRIS,


                                                          Petitioner-Appellant,


                                  versus


WARDEN, LIMESTONE CORRECTIONAL FACILITY,
ATTORNEY GENERAL, STATE OF ALABAMA,


                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (October 24, 2013)

Before DUBINA, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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      Brent Andre Parris (Parris) appeals the district court’s dismissal of his

habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. In July 2009, Parris

filed a § 2254 petition challenging his state conviction and sentence for attempted

murder on twenty-five separate grounds. In one claim, Parris alleged that his Sixth

Amendment right to a speedy trial had been violated by the forty month delay

between his arrest in April 1997 and conviction in August 2000, resulting in

“actual prejudice” to his defense. The district court dismissed Parris’ § 2254

petition, and denied his motion for a certificate of appealability (COA). We

granted a COA on the sole issue of whether the district court erred in denying

Parris’ speedy trial claim.

      On appeal, Parris asks this court to “independently evaluate” the four prongs

of the test outlined by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.

Ct. 2182 (1972) in order to determine whether a speedy trial violation occurred in

his case. He maintains that the trial court’s docketing system violated his Sixth

Amendment rights by giving priority to “jail cases” over “prison cases,” and,

contrary to the finding of the state court, that the trial court did not operate under a

“congested docket” during the pendency of his case. In addition, Parris argues that

(1) his theory of self-defense was harmed by the death or unavailability of three

witnesses; (2) he was barred from parole eligibility and rehabilitative programs due

to the imposition of a detainer throughout the delay; and (3) he was subject to an


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elevated security level while awaiting trial. Upon review of the record and

consideration of the parties’ briefs, we affirm.

      I.     Legal Standards

      We review de novo a district court’s decision to deny habeas relief.

Jamerson v. Sec’y, Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005). Pursuant to

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal

court may not grant a state prisoner habeas relief on a claim that was denied on the

merits in state court unless the state court decision: (1) “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) “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250,

2259 (2010) (quoting 28 U.S.C. § 2254(d)).

      A state court’s decision is “contrary to” federal law if (1) the court arrives at

a conclusion opposite to that reached by the Supreme Court on a question of law,

or (2) the court confronts facts that are “materially indistinguishable” from relevant

Supreme Court precedent, but arrives at a different result from that arrived at by

the Supreme Court. Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A

state court unreasonably applies federal law when it (1) correctly identifies the

legal rule from Supreme Court precedent but unreasonably applies the rule to the


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facts of the case, or (2) “unreasonably extends, or unreasonably declines to extend,

a legal principle from Supreme Court case law to a new context.” Id. The purpose

of AEDPA is to ensure that federal habeas relief function as a guard against

extreme malfunctions in the state criminal justice systems, but not as a means of

error correction. Therefore, the “contrary to” or “unreasonable application of”

standard is difficult to meet. Greene v. Fisher, __ 565 U.S. __, 132 S. Ct. 38, 43,

(2011). Indeed, “if some fairminded jurists could agree with the state court’s

decision, although others might disagree, federal habeas relief must be denied.”

Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011) (en banc) (quotation

omitted).

      The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI.

This right to a speedy trial attaches at the time of arrest or indictment, whichever

comes first, and continues until the date of trial. United States v. Knight, 562 F.3d

1314, 1323 (11th Cir. 2009). In determining whether the right to a speedy trial was

violated, a court should consider: (1) the length of delay; (2) the reason for the

delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.

Barker, 407 U.S. at 530, 92 S. Ct. at 2192.

       A delay of one year is considered “presumptively prejudicial,” and triggers

an inquiry into the other Barker factors. Doggett v. United States, 505 U.S. 647,


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652 n.1, 112 S. Ct. 2686, 2691 n.1 (1992). The Supreme Court explained that

“excessive delay presumptively compromises the reliability of a trial in ways that

neither party can prove or, for that matter, identify. While such presumptive

prejudice cannot alone carry a Sixth Amendment claim without regard to the other

Barker criteria, it is part of the mix of relevant facts, and its importance increases

with the length of delay.” Id. at 655-56, 112 S. Ct. at 2693.

      The burden is on the prosecution to demonstrate the cause of the pre-trial

delay. United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir. 2006). Deliberate

attempts to hinder the defense are weighed heavily against the state, whereas

negligence or overcrowded courts are weighed less heavily. Barker, 407 U.S. at

531, 92 S. Ct. at 2192. Legitimate reasons such as a missing witness justify an

appropriate delay. Id. Pretrial delay is often “inevitable and wholly justifiable”

because the state may need time to collect witnesses against the accused and

oppose his pretrial motions. Doggett, 505 U.S. at 656, 112 S. Ct. at 2693. If the

first three Barker factors do not weigh heavily against the government, the

defendant generally must demonstrate actual prejudice. United States v. Dunn, 345

F.3d 1285, 1296 (11th Cir. 2003) (“In this circuit, a defendant generally must show

actual prejudice unless the first three factors … all weigh heavily against the

government.”) (quotation omitted).




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      A defendant can demonstrate actual prejudice by showing oppressive pretrial

incarceration, anxiety and concern, or “the possibility that the [accused’s] defense

will be impaired by dimming memories and loss of exculpatory evidence.”

Doggett, 505 U.S. at 654, 112 S. Ct. at 2692 (citing Barker, 407 U.S. at 532, 92 S.

Ct. at 2193). Although affirmative proof of particularized prejudice is not essential

to every speedy trial claim, Stoner v. Graddick, 751 F.2d 1535, 1544 (11th Cir.

1985), a defendant trying to prove prejudice from the loss of deceased witnesses’

testimony must make more than a general allegation of loss of witnesses. Doggett,

505 U.S. at 655, 112 S. Ct. at 2692; see also United States v. Solomon, 686 F.2d

863, 872 (11th Cir. 1982) (“When a defendant asserts prejudice because of the loss

of evidence, he must show that the loss impaired his ability to provide a

meaningful defense.”)

      II.    Discussion

      In his appeal, Parris does not argue that the state court applied the wrong

legal standard or misinterpreted the facts, but rather that it improperly evaluated

the Barker factors. We find that the district court properly concluded that the

state’s adjudication of Parris’ Sixth Amendment speedy trial claim was neither

“contrary to” nor “involved an unreasonable application of, clearly established

Federal law.” Thompkins, 130 S. Ct. at 2259 (quoting 28 U.S.C. § 2254(d)).




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       With respect to the first factor, the parties agree that the forty-month delay

between Parris’ April 1997 arrest and August 2000 trial created a presumption of

prejudice. See Doggett, 505 U.S. at 652 n.1, 112 S. Ct. at 2691 n.1. With respect

to the third factor, it is clear that Parris asserted his right to a speedy trial.

       As to the second Barker factor, the reason for the delay, the trial court issued

an order in response to the Alabama Court of Appeals’ remand order, explaining

that during the time this case was pending, the court was operating under a severe

backlog of cases. In order to deal with the overcrowded docket and crowded jail

system, the trial court gave priority to cases where the defendant was incarcerated

due to the pending charge. In January 1999, Parris was tried and convicted of

second degree assault and sentenced to ten years in prison. Accordingly, when the

trial court continued Parris’ attempted murder trial in August 1999, it did not

receive the same priority because he was already incarcerated for another

conviction. Further, the court explained that Parris’ attempted murder case was not

tried earlier because of even older cases being tried. The Alabama Court of

Appeals adopted the trial court’s findings, concluding that there was no evidence

of any attempt on the part of the state to delay Parris’ trial. See Parris v. State, 885

So. 2d 813, 826–30 (Al. Ct. of App. 2001).

       Thus, because the trial court concluded that the first three Barker factors did

not weigh heavily against the state, Parris was required to show that he suffered


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actual prejudice due to the delay. See Dunn, 345 F.3d at 1296. However, the state

court found that the unavailability of three potential defense witnesses did not

adversely impact Parris’ defense. For example, Parris’ counsel asserted that a

witness who died in February 1998 would have testified regarding the victim’s

plan to attack Parris, thereby bolstering Parris’ self-defense claim. However, the

trial court already concluded that the victim was the first aggressor. Furthermore,

Parris provided no evidence to show that he would have been considered for parole

between his assault conviction in January 1999 and his trial for attempted murder.

Finally, Parris could not show that the state court’s finding—that the detainer did

not impact his eligibility for parole or ability to participate in programs within the

prison system—was based on an unreasonable determination of the facts in light of

the evidence presented during the evidentiary hearing on his speedy trial claim.

After reviewing the record submitted on remand, the state appellate court found

that Parris “failed to show actual or presumed prejudice to either his defense or to

his person based upon said delay.” Parris, 885 So. 2d at 830.

      In sum, Parris has not demonstrated that the state court’s decision was

contrary to or involved an unreasonable application of federal law. See

Thompkins, __ U.S. __, 130 S. Ct. at 2259. Indeed, the Supreme Court has

indicated that reasons for delay, such as overcrowded courts, are weighed less

heavily against the state. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Parris


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correctly notes that the fact that a defendant is already serving a prison sentence

does not eliminate his right to a speedy trial. See Smith v. Hooey, 393 U.S. 374,

377 (1979). Here, however, the delay in Parris’ trial was primarily caused by a

severe backlog of cases and jail congestion, not a categorical denial of his right

because he was incarcerated. Further, Parris has not demonstrated actual

prejudice. Although Parris disagrees with the state court’s balancing of the Barker

factors, this is insufficient to entitle him to habeas relief. Accordingly, we affirm

the dismissal of Parris’s § 2254 petition.

      AFFIRMED.




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