     Case: 12-60002       Document: 00512399510         Page: 1     Date Filed: 10/07/2013




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

                                                                            FILED
                                                                          October 7, 2013

                                       No. 12-60002                        Lyle W. Cayce
                                                                                Clerk

LORENZO TARVER,

                                                  Petitioner-Appellant
v.

JACQUELYN BANKS, Warden,

                                                  Respondent - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                           U.S.D.C. No. 4:10-CV-00159


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Lorenzo Tarver (“Tarver”) appeals from the district court’s
denial of his federal habeas petition. Tarver contends that the two-year delay
between his arrest and trial violated his Sixth Amendment rights and that his
sentence was improperly enhanced by facts not found by a jury in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). We AFFIRM the district court’s
denial of habeas relief.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                       I. Factual and Procedural History
      On June 18, 2004, Lorenzo Tarver was arrested after police officers found
31.8 kilograms of marijuana and a number of firearms inside his home, which
was within 1,500 feet of a protected area, in violation of Mississippi Code 41-29-
142(1) (2009). Due to a delay in obtaining results from the crime lab, Tarver’s
case was not presented to the grand jury until January 2005. After being
indicted, Tarver’s trial was originally scheduled for June 22, 2005, at which time
the trial judge denied Tarver’s motion to dismiss based on a violation of his
speedy trial rights. Following several suppression hearings, which were held on
the original trial date, Tarver’s counsel asked to delay the trial due to scheduling
conflicts. Tarver later hired new counsel, who sought continuances until June
2006, when the trial judge required the trial to begin.
      After finding Tarver guilty of possession of marijuana with intent to sell,
the jury was dismissed. An officer testified at sentencing that he measured the
distance of 899 feet between Tarver’s property line and the property line of a
nearby daycare. Tarver did not object to this testimony. The trial court ruled
the prosecution had proven beyond a reasonable doubt that the crime occurred
within 1,500 feet of a daycare, and sentenced Tarver to 60 years of
imprisonment, double the sentence he would have otherwise received without
the enhancement.
      Tarver appealed his sentence on multiple grounds, including denial of his
speedy trial rights and Sixth Amendment rights. The Mississippi Supreme
Court affirmed his conviction and sentence. Tarver then filed an application for
habeas relief in state court, in which he argued, inter alia, that his speedy trial
rights were denied and that his sentence violated Apprendi. The Supreme Court
of Mississippi issued an order denying the appeal, stating that Tarver’s claims
were previously adjudicated, and therefore bared by the doctrine of res judicata.



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      Tarver filed an application for habeas relief under 28 U.S.C. § 2254 in the
district court, arguing numerous grounds of error, which was denied. After the
district court denied his certificate of appealability (“COA”), Tarver sought and
received a COA from this court with respect to his speedy trial and Apprendi
claims.
                             II. Standard of Review
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo.” Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir. 2001) (quoting Thompson v. Cain, 161 F.3d 802, 805
(5th Cir. 1988)). “A federal court’s collateral review of a state-court decision
must be consistent with the respect due state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under 28 U.S.C. § 2254(d), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court cannot grant habeas corpus relief to claims a state
court adjudicates on the merits unless the state court’s holding
      (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 on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
Therefore, a federal court’s review of a claim adjudicated in a state court is
highly deferential. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision.” Harrington v. Richter, 131 S.Ct.
770, 786 (2011) (citation and internal quotation marks omitted). Under §
2254(d), a state prisoner seeking federal habeas relief “must show that the state
court’s ruling on the claim . . . was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 786-87. “[E]ven a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.” Id. at 786.
Moreover, a state court’s factual findings are presumed correct unless the
applicant rebuts that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). Section 2254(d) authorizes federal courts to review only a
state court’s decision, not the written explanation for that decision. Summers
v. Dretke, 431 F.3d 861, 868 (5th Cir. 2005).
                                  III. Discussion
A. Speedy Trial
      Tarver contends that his right to a speedy trial was violated, and that the
violation is presumptively prejudicial because there was an almost two-year
delay between his arrest and his trial.         He also contends that the delay
prevented him from finding two defense witnesses and caused him significant
anxiety. We affirm the district court’s denial of habeas relief because Tarver has
not provided sufficient evidence demonstrating that it was unreasonable for the
state court to conclude that his speedy trial right was not violated. See 28
U.S.C. § 2254(d).
      The Sixth Amendment right to a speedy trial is “‘fundamental’ and is
imposed by the Due Process Clause of the Fourteenth Amendment on the
States.” Barker v. Wingo, 407 U.S. 514, 515 (1972). The right “attaches when
the defendant has been formally indicted or actually restrained accompanying
arrest.” United States v. Jackson, 549 F.3d 963, 971 (5th Cir. 2008) (citation and
internal quotation marks omitted). In reviewing a speedy trial claim, the court
assesses the following factors: (1) the length of delay, (2) the reason for the delay,
(3) the defendant’s diligence in asserting the right, and (4) any prejudice to the
defendant resulting from the delay. Barker, 407 U.S. at 530.



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      The state court, in reviewing the speedy trial claim, found that although
the almost two year delay was sufficient to trigger Barker analysis, there was no
violation because Tarver’s counsel caused (the second) half of the delay and
Tarver could show no prejudice. Tarver v. Banks, 15 So.3d 446, 461-62 (Miss. Ct.
App. 2009). Tarver does not present evidence sufficient to rebut by clear and
convincing evidence the state court’s determination that the cause of delay
weighed in favor of the state because the state’s reasons for delay were primarily
neutral and the second year of delay was the result of Tarver’s counsel’s
unavailability. Id.; see 28 U.S.C. § 2254(e)(1).
      Furthermore, Tarver does not present sufficient evidence to rebut by clear
and convincing evidence the state court’s determination that the delay did not
prejudice Tarver. While Tarver asserts that the delay contributed to hardships
in finding two witnesses, he admits that he does not know how those witnesses
would have affected the outcome of the case. Id. In a case factually similar to
the one at hand, we have previously noted that the defendant’s “vague and
conclusory allegations” were “insufficient to constitute proof of prejudice.”
Goodrum v. Quarterman, 547 F.3d 249, 262 (5th Cir. 2008). Because Tarver
does not even know the names of the potential witnesses or the content of their
testimony, we conclude that the district court properly held that it was not an
unreasonable application of the law for the state court to hold that Tarver did
not demonstrate prejudice.
      On appeal to this court, Tarver asserts, for the first time, that he was
prejudiced by the delay because the recovered marijuana was stolen from the
police station before trial and because he suffered mental anguish. As a general
rule, “arguments not raised before the district court are waived on appeal” and,
absent an applicable exception not claimed here, issues not exhausted in the




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state court cannot be considered for the first time on federal habeas review.1
Balentine v. Thaler, 626 F.3d 842, 848 (5th Cir. 2010) (citation omitted); Ruiz v.
Quarterman, 460 F.3d 638, 643 (5th Cir. 2006) (holding that a petitioner’s claims
are procedurally defaulted on federal habeas review where the facts or legal
theories relied upon are different in federal court than in state court). Thus, we
decline to address these arguments.
       The evidence on the record shows that the state court did not
unreasonably conclude that Tarver’s speedy trial right was not violated;
therefore, the district court properly denied habeas relief. See Summers, 431
F.3d at 869.
B. Apprendi Violation
       Tarver contends that his sentence was impermissibly enhanced to twice
the statutory maximum in violation of Apprendi, because the trial judge, based
on facts not presented to the jury, made the proximity finding necessary to
increase Tarver’s sentence according to Mississippi Code 41-29-142(1). We
affirm the district court’s denial of habeas relief based on Tarver’s Apprendi
claim.
       The state supreme court dismissed the Apprendi issue, which Tarver first
raised in his petition for habeas relief, along with all of his other claims, holding
that the claims raised in state habeas had already been addressed in Tarver’s
direct appeal and lacked merit. Although the state supreme court did not


       1
        In any event, we determine these issues are without merit. The theft took place after
samples of the marijuana had been taken to the crime lab, and photographs of the marijuana
were introduced at trial. Tarver does not claim that the substance in the photographs was not
marijuana, and therefore, there is no reason that he was prejudiced by the theft.
Furthermore, Tarver admits that his mental anguish is not above what an average person
facing charges would encounter and also provides no evidence that he has suffered any
anxiety. See United States v. Frye, 489 F.3d 201, 213 (5th Cir. 2007) (holding there was no
prejudice where a defendant provided no evidence beyond his own allegations that he suffered
anxiety).


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explicitly discuss Tarver’s Apprendi claim, “[w]hen a federal claim has been
presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.” Harrington,
131 S.Ct. at 784-85 (2011). Furthermore, “determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion does not
require that there be an opinion from the state court explaining the state court’s
reasoning.” Id. at 784. Where there is no accompanying explanation, “the
habeas petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Id. “If we would accord AEDPA
deference to a state court decision that contained no explanation for its denial
of relief, we are hard pressed to deny such deference to a state court’s decision
indicating that the claims were without merit,” regardless of how they reach that
conclusion. Woodfox v. Cain, 609 F.3d 774, 797 (5th Cir. 2010); see also Moore
v. Dretke, 182 F. App’x 329, 335 (5th Cir. 2006) (unpublished) (“[W]e cannot
second guess a state court’s decision just because its reasoning is wrong.”).
Furthermore, we have consistently held that a federal habeas court is
“authorized . . . to review only a state court’s ‘decision,’ and not the written
opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002); Trottie v. Stephens, 720 F.3d 231, 240-41 (5th Cir. 2013). Therefore, when
looking at the ultimate legal determination arrived at by the state court, the
federal court must review “what arguments or theories . . . could have
supported[] the state court[’s] decision; and then to ask whether it is possible
fair-minded jurists could disagree that those arguments or theories are
inconsistent with a prior decision of this Court.” Harrington, 131 S.Ct. at 786;
see also Cullen v. Pinholster, 131 S.Ct. 1388, 1402 (2011).
      We affirm the district court’s denial of habeas relief because the state court
would not have been unreasonable to have concluded that any Apprendi error

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was harmless.2 An Apprendi error does not “belong[] in the limited class of
fundamental constitutional errors that defy analysis by harmless error
standards.”      United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002)
(citation and internal quotation marks omitted); see Washington v. Recuenco, 548
U.S. 212, 222 (2006)(“Failure to submit a sentencing factor to the jury . . . is not
structural error.”). Because Tarver’s indictment properly included a charge
alleging a violation of Mississippi Code 41-29-142(1), we look only at the state’s
failure to present evidence to the jury and to specifically request a jury finding
on whether the drugs were found within 1,500 feet of a protected area.
       Here, the evidence that the offense occurred within 1,500 feet of a
daycare—which was only presented at the sentencing hearing—was
uncontroverted. Tarver does not contend that there is any dispute about the
distance between his property and the daycare.3 The measurement taken by the


       2
          In Fry v. Pliler, 551 U.S. 112, 121 (2007), the Supreme Court held that the more
deferential standard (i.e., more difficult for a petitioner to meet) announced in Brecht v.
Abrahamson, 507 U.S. 619 (1993), applies on habeas review to determine harmlessness of
errors instead of the less deferential standard in Chapman v. California, 386 U.S. 18 (1967).
Brecht requires a showing of actual prejudice: “a substantial and injurious effect on the jury’s
verdict” while Chapman examined harmlessness beyond a reasonable doubt (and, under a
habeas review, would then lead to the question of whether the state court’s determination that
an error was harmless beyond a reasonable doubt was unreasonable). Fry, 551 U.S. at 119-20.
Of course, here the issue is that the jury was never asked to issue a verdict, complicating the
question of applying Brecht. In Estrella v. Ollison, 668 F.3d 593, 598 (9th Cir. 2011), the
Ninth Circuit construed Brecht as requiring that on habeas review, the court must determine
whether the Apprendi error had a “substantial and injurious effect on the sentence.” 668 F.3d
at 598. To determine prejudice, the court held that in using this standard, relief would only
be granted if there is “grave doubt that a jury would have found the relevant aggravating
factor beyond a reasonable doubt.” Id. (citation omitted) Because we conclude that the state
court decision here meets the less deferential review provided by the “more liberal
AEDPA/Chapman standard,” Fry, 551 U.S. at 120, we need not reach the question of how to
apply Brecht to a claimed Apprendi error.
       3
        In fact, the state appellate court noted, in dismissing Tarver’s claim that his Sixth
Amendment right was violated when the indictment was altered to reflect that the marijuana
was found within 1,500 feet of a daycare, rather than a park, that Tarver’s sole argument
against the indictment was that he could no longer raise his sole defense to the sentence
enhancement: that the protected area was not a park. Tarver, 15 So. 3d at 458.

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testifying officer of 899 feet is well within 1,500 feet of a protected area, as
required by the statute. Any rational jury, “when presented with this evidence,
could not and would not reach ‘a contrary finding with respect to the omitted
element.’” Matthews, 312 F.3d at 667 (applying a less deferential standard of
review because it was a direct review of a criminal case). Therefore, under
harmless error review, the state court would not be unreasonable for dismissing
Tarver’s Apprendi claim.
       Tarver has failed to show that the state court’s rejection of his Apprendi
claim was “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 131 S.Ct. at 786-87. Accordingly, the district court
properly denied Tarver relief on this issue.4
                                     IV. Conclusion
The district court’s denial of Tarver’s request for habeas relief is AFFIRMED.




       4
         The district court denied Tarver’s claim based on its conclusions that Tarver had
waived the Apprendi error for strategic reasons and because any potential Apprendi error was
harmless due to Tarver’s status as a repeat drug offender, thus making a 60-year sentence
possible under the state’s recidivism statute. We do not reach these issues because we
conclude on other grounds that the district court properly denied habeas relief.

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