                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            SEP 7 2004
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

 STACY SIMMS,

               Petitioner-Appellant,                     No. 03-2286
          v.                                       District of New Mexico
 ERASMO BRAVO, Warden,                             (D.C. No. Civ-01-1428)
 Guadalupe County Correctional
 Facility; ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

               Respondents-Appellees.


                            ORDER AND JUDGMENT           *




Before EBEL, MURPHY , and McCONNELL , Circuit Judges.



      Stacy Simms, a state prisoner proceeding   pro se , seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. Because we conclude

that Mr. Torres has made “a substantial showing of the denial of a constitutional




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
right,” we grant COA with respect to one issue raised in his application. 28

U.S.C. § 2253(c)(2).

       Because Mr. Simms filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), our review is governed

by its provisions.   McGregor v. Gibson , 248 F.3d 946, 951 (10th Cir. 2001).

Under AEDPA, in order to appeal the district court’s denial of habeas relief in

which the detention arises out of process issued by a state court, a petitioner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). He may make this showing by establishing that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.”      Slack v. McDaniel , 529 U.S. 473,

484 (2000) (internal citations and quotation marks omitted).

       Mr. Simms was convicted in New Mexico state court of two counts of

criminal sexual penetration, two counts of aggravated burglary, one count of

kidnaping, two counts of aggravated battery, one count of tampering with

evidence, and one count of intimidation of a witness. The New Mexico Court of

Appeals reversed on one of the aggravated burglary counts, one of the aggravated

battery counts, and the intimidation of a witness count. The court affirmed the

remaining convictions, and Mr. Simms was sentenced to imprisonment for fifty-


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eight and one half years. In this habeas proceeding, he challenges his

incarceration on two grounds: (1) insufficiency of the evidence, and (2) violation

of his right to a speedy trial.

       We conclude that Mr. Simms has failed to make “a substantial showing of

the denial of a constitutional right” with respect to the sufficiency of the

evidence. His argument is based primarily on the fact that fingerprint evidence

introduced against him at trial was based on partial prints, and on challenges to

the credibility of the victim’s identification testimony. Because these claims were

adjudicated on the merits in the state court, Mr. Simms is not entitled to collateral

relief in federal court unless he can show that 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.” 28

U.S.C. §2254(d)(1). Mr. Simms has not met that difficult standard.

       Mr. Simms also raises a speedy trial claim. There was a twenty-seven

month delay between Mr. Simms’s arrest and his trial, resulting from five

continuances. The trial court and the New Mexico Court of Appeals rejected Mr.

Simms’s claim that this lengthy delay violated his right to a speedy trial. Mr.

Simms asserts that the state court’s decision misstated the record and incorrectly

applied the Supreme Court’s speedy trial balancing test. These assertions raise




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questions that are sufficiently substantial to justify considering them on the

merits. We therefore grant a COA on the speedy trial issue.

       We turn now to the merits of Mr. Simms’s speedy trial claim. This claim

was adjudicated on the merits in state court, and our review is therefore

deferential. Mr. Simms can only prevail if he can show that the state court’s

decision was an unreasonable application of Supreme Court precedent or was an

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

state court. See 28 U.S.C. §2254(d)(1).

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

accused shall enjoy the right to a speedy and public trial.” In      Barker v. Wingo ,

407 U.S. 514 (1972), the Supreme Court articulated a four-factor balancing test to

determine whether a defendant has been deprived of his right to a speedy trial.

The four factors to be considered are (1) the length of the delay, (2) the reason for

the delay, (3) the extent to which the defendant asserted his speedy trial rights,

and (4) prejudice to the defendant.     Id. at 530-32. In Barker , the Court

emphasized the flexible nature of this test, stating that none of the four factors is

either a necessary or a sufficient condition to a successful speedy trial claim.     Id.

at 533. Additional factors might be relevant in any given case.         Id. The Court

characterized the right to a speedy trial as “slippery,” “amorphous,”

“imprecis[e],” “necessarily relative,” and “more vague” than other procedural


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rights. Id. at 521-22, 30. Thus, the Court concluded that it could “do little more

than identify some of the factors which courts should assess” and that the

flexibility of its test “necessarily compels courts to approach speedy trial cases on

an ad hoc basis.”   Id. at 530.

       The flexibility of the Supreme Court’s speedy trial test creates a high

hurdle for habeas petitioners claiming that a state court’s speedy trial decision

was unreasonable. AEDPA only allows us to grant the petition if the state court’s

decision falls outside the range of reasonable applications of the   Barker test, and

the Supreme Court made it clear in     Barker that the range is very broad indeed.

       Under this standard, Mr. Simms’s petition must be denied because the New

Mexico court’s resolution of the speedy trial claim was a reasonable application

of the Barker test. 1 The New Mexico Court of Appeals specifically applied

Barker ’s four factors. It first considered the length of the delay and agreed with

Mr. Simms that the 27-month delay was sufficiently lengthy to be “presumptively


       1
        We note that the New Mexico courts provided Mr. Simms with an ample
opportunity to litigate his speedy trial claim and it is evident that they considered
the claim carefully. The trial court twice considered Mr. Simms’s contention that
his case be dismissed on speedy trial grounds, holding two separate hearings on
the question. (R. doc. 10, at 12-14). The New Mexico Court of Appeals then
upheld the trial court’s denial of Mr. Simms’s motion, devoting 11 pages to a
discussion of the speedy trial claim. Although a state court that fails to articulate
any reasons for its decision is still entitled to deference under AEDPA, a carefully
reasoned state court decision is more likely to withstand judicial scrutiny because
it ensures that we do not misconstrue the basis for the state court’s decision.
Aycox v. Lytle , 196 F.3d 1174, 1178 n.3 (10th Cir. 1999).

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prejudicial,” thereby requiring the state to show that, on balance, the four factors

do not weigh in favor of dismissal. Op. at 3.

      In analyzing the “reasons for delay” prong, the court divided the twenty-

seven months between arrest and trial into three periods of delay. The first

continuance, from July to December, 1996, was made at the behest of the State

and stipulated to by defense counsel in order to enable defense counsel, who had

been appointed only one month earlier to replace Mr. Simms’s original attorney,

to prepare for trial. Because the delay was stipulated to by defense counsel and

was for the defendant’s benefit, the court weighed the first delay “slightly” in

favor of the State.

      The State sought the second extension, from December 1996 to June 1997,

because DNA evidence implicated Mr. Simms in two other unsolved rape cases

and the State needed time to complete the testing and investigation of those cases

in order to consider joining them with the current one. The State court found that

this was an appropriate reason for delay and that this period was neutral for

purposes of the Barker test.

      The State then moved for a third extension, from June to December, 1997,

on the same ground, namely, its ongoing DNA investigation into other rapes. The

trial court rejected this ground, but granted the extension anyway because the

victim was in the hospital awaiting surgery and would be unavailable to testify for


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the next few months. The New Mexico Court of Appeals therefore did not weigh

this delay against the State. Op. 5, quoting         Barker , 407 U.S. at 531 (“[A] valid

reason, such as a missing witness, should serve to justify appropriate delay.”).

       In November, the State requested a fourth extension. The trial court

granted the extension until April, 1998, on the grounds that the prosecutor and

judge had a scheduling conflict with another trial and the victim remained ill and

unable to travel. The New Mexico Court of Appeals held that this delay was

partially neutral, because victim illness is a valid reason, and partially attributable

to the state, because, under   Barker , the state is ultimately held responsible for

scheduling problems.

       Considering the four periods of delay together, the New Mexico court

concluded that the State was responsible for some delay, the defendant

responsible for some, and the rest was neutral. The court therefore held that the

second Barker factor did not favor either party.

       The third Barker factor is the extent to which the defendant asserted his

speedy trial rights. The New Mexico court noted that the defendant’s first

counsel demanded a speedy trial in his initial form entry of appearance, that trial

counsel verbally objected to the State’s extension requests, and that Mr. Simms

moved to dismiss the charges on speedy trial grounds. However, the court also

pointed out that Mr. Simms never filed formal written responses to the State’s


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continuance motions and never, other than in the form entry of appearance,

affirmatively demanded a speedy trial. The court therefore concluded that this

factor did not weigh significantly in favor of Mr. Simms.

      The New Mexico Court of Appeals then considered the fourth       Barker

factor, prejudice to the defendant. The Court acknowledged the hardships Mr.

Simms endured during 27 months of pretrial incarceration and found that he was

prejudiced, although the weight of this prejudice was diminished somewhat

because his incarceration was due, at least in part, to a probation violation based

on charges unrelated to the rape prosecution. Mr. Simms also contended that his

defense at trial was impaired by the delay because the prosecutor, in front of the

jury, questioned his failure to call witnesses to support his alibi defense. The

New Mexico court, however, was unimpressed with this contention, because Mr.

Simms failed to identify who, if anyone, could have supported his alibi and he did

not present any evidence that he attempted to obtain such witnesses or that their

unavailability was related to the delay.

      When the New Mexico court balanced all of the     Barker factors together, it

concluded that the delay did not violate Mr. Simms’s right to a speedy trial. The

court acknowledged that the delay was lengthy and that Mr. Simms was

prejudiced. On the other hand, the prejudice was not overly severe, some of the

delay was attributable to the defendant, and none of it was attributable to attempts


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by the State to gain an advantage or otherwise harm the defendant. The court

ruled that, on balance, the   Barker factors did not tip sufficiently in favor of Mr.

Simms to warrant dismissal of the charges on speedy trial grounds.

       Mr. Simms contends that the state court decision was unreasonable for

several reasons. First, he argues that the continuance which was granted to allow

his second lawyer to prepare for trial was not attributable to him, because he was

not responsible for the delay in appointing initial counsel or for the replacement

of his first lawyer. We cannot determine from the record the causes for the delay

in appointing initial counsel and for replacing the first lawyer. Nevertheless, it

was not unreasonable for the state court to attribute this delay to the defendant.

The delay was stipulated to by defense counsel, it was given for the benefit of Mr.

Simms, and, in his briefs before the New Mexico Court of Appeals, Mr. Simms’s

appellate counsel conceded joint responsibility for the delay. It is not

unreasonable for a state court to weigh slightly against the defendant a delay that

was for his own benefit and to which trial counsel stipulated and appellate

counsel conceded joint responsibility.

       Mr. Simms also claims that the state court misstated the record when it said

that Mr. Simms failed to file formal objections to the continuances or to demand a

speedy trial. Mr. Simms claims that he demanded a speedy trial twice, once in his

first lawyer’s form entry of appearance and again orally through a motion to


                                            -9-
dismiss a year and a half later. The New Mexico Court of Appeals acknowledged

these facts, but discounted somewhat their importance. The court, relying on

Barker , correctly pointed out that the assertion of the right to a speedy trial is to

be given less weight when the defendant does not request a speedy trial but only

moves to dismiss on speedy trial grounds.      See 407 U.S. at 535. Otherwise,

defendants could get charges dismissed based on delays that they acquiesced in at

the time. In this case, it seems that Mr. Simms genuinely opposed most of the

continuances, but it was not unreasonable for the state court to discount somewhat

his assertion of the right due to failure to file formal oppositions and failure, in

the motion to dismiss, to demand in the alternative an immediate trial.

      Finally, Mr. Simms contends that the state court unreasonably concluded

that his defense was not prejudiced by the delay. The court rejected Mr. Simms’s

contention that the delay hindered his ability to produce alibi witnesses because

Mr. Simms failed to state specifically whose testimony was lost and how the

witness’s unavailability was caused by the delay. To establish prejudice, a

defendant must provide some specific evidence.       See United States v. Villano , 529

F.2d 1046, 1060 (10th Cir. 1976). On appeal, Mr. Simms now refers to a specific

alibi witness, a Mr. Spicer, who allegedly would have testified that he was

together with Mr. Simms at a nightclub on the night of the crime. Mr. Simms

alleges further that defense counsel’s investigator had spoken with Mr. Spicer


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before trial but due to the lengthy delay Mr. Spicer could not be found to testify at

trial. According to Mr. Simms, Mr. Spicer’s unavailability was the subject of an

in camera hearing before the trial judge.

      It was not unreasonable for the New Mexico Court of Appeals to have

failed to consider the specific claim of prejudice arising from the loss of Mr.

Spicer’s testimony because the record does not reflect that any allegations or

evidence related to Mr. Spicer was before the court. Mr. Simms’s briefs to the

New Mexico Court of Appeals make no mention of Mr. Spicer or any other

specific alibi witness. Thus, although Mr. Simms now makes more specific

allegations in his habeas appeal, this does not change the fact that he failed to

provide specific evidence to the state court regarding the impairment of his alibi

defense. It cannot be unreasonable for the state court to reject Mr. Simms’s

argument for failure to provide specific evidence when in fact he failed to provide

any specific evidence.

      Mr. Simms has not demonstrated that the decision of the New Mexico

Court of Appeals was an unreasonable application of the    Barker test. In so

concluding, we do not wish to minimize the hardships that surely resulted from

such a long delay. Twenty-seven months is a long time to wait in jail, and were

we considering this case   de novo , perhaps we might have weighed the factors

more heavily in Mr. Simms’s favor. Nevertheless, the state court’s application of


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the “difficult and sensitive balancing process,”     Barker , 407 U.S. at 533, was well

within the limits established by the Supreme Court for consideration of speedy

trial claims.

       For the foregoing reasons, we    AFFIRM the district court’s dismissal of

Mr. Simms’s habeas petition.

                                                   Entered for the Court

                                                   Michael W. McConnell
                                                   Circuit Judge




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