                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 ___________

                                     No. 08-2593
                                     __________

Robert Taylor,                           *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
                                         *
Don Roper,                               *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 12, 2009
                                 Filed: April 13, 2009
                                  ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________
SHEPHERD, Circuit Judge.

       Robert Taylor was convicted in Missouri on four counts of robbery. He filed
a petition for a writ of habeas corpus in federal district court1 pursuant to 28 U.S.C.
§ 2254 alleging: (1) ineffective assistance of counsel, (2) error in the state court’s
failure to sever his robbery counts, and (3) deprivation of his Sixth Amendment right
to a speedy trial. The district court denied his petition in all respects. He limits his
appeal to the speedy trial claim. We affirm.


      1
       The Honorable Paul A. Magnuson, United States District Court for the Eastern
District of Missouri.
I.

       In February 1998, Robert Taylor was convicted by a jury in Missouri state court
of three counts of first-degree robbery and one count of second-degree robbery.
Taylor had been indicted 15 months earlier in November 1996. At the time of his
indictment, he was being held on an unrelated burglary charge. He was not informed
of the indictment until June 1997. In November 1997, the trial court denied his
motion to dismiss the case due to lack of a speedy arraignment.

       After his conviction in February 1998, Taylor appealed, inter alia, on the
grounds that his right to a speedy arraignment had been violated. The Missouri Court
of Appeals rejected his appeal. State v. Taylor, 998 S.W.2d 817, 817 (Mo. Ct. App.
1999) (per curiam). He did not seek review by the Missouri Supreme Court.2 In
November 1999, Taylor brought a motion for post-conviction relief in state trial court,
arguing that counsel had been ineffective for failing to preserve for review his speedy
trial claim. The trial court denied his motion. The Missouri Court of Appeals
affirmed the denial of post-conviction relief on the grounds that he had not shown that
his right to a speedy trial had been denied and that, under Missouri law, a claim of
ineffective assistance for failure to preserve issues for appellate review is not




      2
         Under Missouri law, an appeal to the intermediate state appellate court
sufficiently exhausts state remedies to permit federal habeas review under section
2254. See Missouri Supreme Court Rule 83.04 (“Transfer by this Court is an
extraordinary remedy that is not part of the standard review process for purposes of
federal habeas review.”); Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002)
(“Rule 83.04 . . . makes clear that Missouri does not consider a petitioner who
bypasses its supreme court in favor of federal habeas review to have denied the State
its rightful ‘opportunity to resolve federal constitutional claims.’” (quoting O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999))).
                                           -2-
cognizable in a post-conviction motion. Taylor v. State, No. ED87418, slip op. at 3,
6 (Mo. Ct. App. Feb. 27, 2007) (unpublished memorandum).3

        In November 2007, Taylor sought federal habeas review alleging three grounds
for relief—ineffective assistance of counsel, error in failing to sever the various
robbery counts, and denial of his right to a speedy trial. The district court dismissed
all three claims. Taylor appeals only the denial of his speedy trial claim. For the first
time, he claims on appeal that his alibi witness, a man named Rodney Ray, died on
December 21, 1996, approximately one month after his indictment. He contends that
the delay in his trial prevented him from preserving Ray’s testimony and deprived him
of his ability to exculpate himself. He did not present Ray’s death or the details of his
alibi testimony in any of the trial, direct appeal, or post-conviction proceedings in
state court. Taylor claims that this was a strategic decision on the part of trial counsel
to avoid incurring the jury’s distrust by asserting an alibi that could be corroborated
only by a deceased witness.

                                           II.

       The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) strictly limits
a federal court’s power to review habeas petitions brought by state-court prisoners.
“Pursuant to [AEDPA], when a state prisoner files a petition for writ of habeas corpus
in federal court we are directed to undertake only a limited and deferential review of
underlying state court decisions.” Mark v. Ault, 498 F.3d 775, 782-83 (8th Cir. 2007)
(quotation omitted). “As the Supreme Court has stated, ‘[AEDPA] modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal
habeas retrials and to ensure that state-court convictions are given effect to the extent




      3
       The court’s published order affirming the decision without comment can be
found at Taylor v. State, 215 S.W.3d 738 (Mo. Ct. App. 2007) (per curiam).
                                           -3-
possible under law.’” Id. at 783 (quoting Bell v. Cone, 535 U.S. 685, 692 (2002)).
Given these considerations, an application for habeas corpus

      shall not be granted with respect to any claim that was adjudicated on the
      merits in State court proceedings unless the adjudication of the claim (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 . . . .

28 U.S.C. § 2254(d). “Under the ‘contrary to’ clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or . . . decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., concurring, writing for the
majority in cited section). “Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413 (O’Connor, J., concurring, writing for
the majority in cited section). “The question under AEDPA is not whether a federal
court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007).

       In denying Taylor’s post-conviction speedy trial claim, the Missouri trial court
relied on the analysis of Barker v. Wingo, 407 U.S. 514, 530 (1972), as adopted by
the Missouri Supreme Court in State v. Bolin, 643 S.W.2d 806, 813 (Mo. 1983). In
Barker, the Supreme Court explained that speedy trial cases are to be evaluated by a
balancing test “that necessarily compels courts to approach speedy trial cases on an
ad hoc basis.” 407 U.S. at 529. Barker identified four factors that figure prominently
in this inquiry: “[l]ength of delay, the reason for the delay, the defendant’s assertion
of his right, and prejudice to the defendant.” Id.

                                           -4-
       The post-conviction court dismissed Taylor’s speedy trial claim on the grounds
that he had failed to show prejudice and that the evidence of his guilt was
“substantial.” Taylor v. State, No. 961-3691, slip op. at 6 (Mo. Cir. Ct. Oct. 31,
2005). The Missouri Court of Appeals affirmed the denial of his speedy trial claim
and reiterated the trial court’s analysis. Taylor, No. ED87418, slip op. at 4. The state
court’s decision was neither contrary to nor an unreasonable application of federal
law.

       The state court correctly identified the Supreme Court precedent governing the
issue, and the Supreme Court has not “decide[d] a case differently . . . on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 412-13 (O’Connor, J.,
concurring, writing for the majority in cited section). Furthermore, the state court
decision was not an unreasonable application of the relevant precedent. Because the
Barker standard is a general, multi-factor standard, “a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.”
Knowles v. Mirzayance, 556 U.S. __, slip op. at 11 (2009); see also Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case determinations.”).

       “A showing of prejudice is required to establish a violation of the Sixth
Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing
here.” Reed v. Farley, 512 U.S. 339, 353 (1994). Taylor never mentioned the death
of Rodney Ray during the state court proceedings. Further, he has yet to explain what
alibi Ray would have given had he been alive to testify on Taylor’s behalf. His failure
to show prejudice prevents us from holding that Missouri’s speedy trial analysis was
an unreasonable application of the Sixth Amendment right to a speedy trial. See
United States v. Shepard, 462 F.3d 847, 864-65 (8th Cir. 2006) (17-month delay not
a speedy trial violation where the defendant, among other deficiencies, failed to show



                                          -5-
prejudice to his case); United States v. Brown, 325 F.3d 1032, 1034-35 (8th Cir. 2003)
(three-year delay did not relieve defendant of the requirement of showing prejudice).

         To cure this defect, Taylor also requests that we remand his case for an
evidentiary hearing about the contents of Ray’s alibi. He contends that this will allow
him to develop the prejudice element of his speedy trial claim. However, AEDPA
strictly limits the authority of a federal habeas court to order new evidentiary hearings:

      Federal law provides that if an applicant has failed to develop the factual
      basis of a claim in State court proceedings, then the federal court shall
      not hold an evidentiary hearing unless the claim relies on (1) a new rule
      of constitutional law made retroactive to cases on collateral review, or
      (2) a factual predicate that could not have been previously discovered
      through the exercise of due diligence.

Gingras v. Weber, 543 F.3d 1001, 1004 (8th Cir. 2008) (quoting 28 U.S.C. §
2254(e)(2)).

       Taylor omits any discussion of section 2254(e)(2)’s requirements, and he
cannot meet either of section 2254(e)(2)’s narrow exceptions permitting us to order
an evidentiary hearing regarding Rodney Ray’s supposed alibi. First, there is no new
rule of constitutional law that applies here. Second, Taylor does not claim that this
evidence is newly discovered. As Taylor acknowledges in his reply brief, trial counsel
chose not to present Ray’s death and alleged alibi to the state court out of a strategic
calculation that relying on a dead alibi witness would seem suspicious and backfire
with the jury. Therefore, he has failed to meet either of section 2254(e)(2)’s
exceptions, and we deny his request for an evidentiary hearing.

                                           III.

      Accordingly, the judgment of the district court is affirmed.
                         _______________________________

                                           -6-
