     Case: 10-31149   Document: 00512008300     Page: 1   Date Filed: 10/03/2012




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

                                                                   FILED
                                                                 October 3, 2012

                                  No. 10-31149                    Lyle W. Cayce
                                                                       Clerk

JAMES E. DIVERS,

                                            Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                            Respondent-Appellee



                  Appeal from the United States District Court
                     for the Western District of Louisiana


Before STEWART, Chief Judge, and ELROD and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        James Divers, a Louisiana prisoner serving consecutive life sentences for
second-degree murder, appeals the district court’s denial of his application for
relief under 28 U.S.C. § 2254. We granted a certificate of appealability on the
question of whether Divers waived his speedy trial rights under the Sixth
Amendment. We conclude that the merits of Divers’ speedy trial claim were
adjudicated by the state courts, and the state courts’ resolution of that claim was
neither contrary to, nor involved an unreasonable application of federal law.
Accordingly, the district court’s denial of relief is AFFIRMED.
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              FACTUAL AND PROCEDURAL BACKGROUND
      Divers was indicted in 1988 on two counts of first-degree murder. He was
convicted of both counts in 1991 and sentenced to death. In September 1996, the
Louisiana Supreme Court vacated the convictions because the trial court had
refused to dismiss jurors unfairly predisposed to vote for the death penalty.
State v. Divers, 681 So. 2d 320, 327 (La. 1996). Rehearing was denied that
October, and the case was remanded for a new trial.
      In April 1998, Divers filed a motion in state court to quash the original
indictment for lack of prosecution, as over a year had elapsed since remand. See
La. Code Crim. Proc. Ann. art. 582.         The court denied the motion, in part
because Divers’ replacement counsel, serving because the prior counsel had been
injured and was unable to appear, had waived all applicable prescriptive periods.
A state appellate court denied Divers’ motion for a supervisory writ because the
record supported the trial court’s finding that counsel had acted on Divers’
behalf in moving for continuances. The Louisiana Supreme Court also denied
the writ. State v. Divers, 742 So. 2d 874 (La. 1999). In 1999 Divers succeeded
in having the indictment dismissed due to systemic racial discrimination in the
selection of grand jury forepersons. The State unsuccessfully sought appellate
review. State v. Divers, 793 So. 2d 308 (La. Ct. App. 2001).
      On September 26, 2002, Divers was re-indicted on the two first-degree
murder counts. In early 2003, the State reduced the charges to second-degree
murder, for which Divers was found guilty and sentenced to two consecutive
sentences of life imprisonment. A state appellate court affirmed the convictions
and sentences. State v. Divers, 889 So. 2d 335 (La. Ct. App. 2004).
      Divers filed a state court application for post-conviction relief on numerous
grounds, including alleged infringement of his right to a speedy trial. The trial
court concluded that Divers’ contentions either lacked merit or had been
adjudicated on direct appeal. The state appellate and supreme courts declined
to review Divers’ claims, issuing no opinion.

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        Divers then filed this Section 2254 petition in district court. The district
court denied habeas relief, and Divers timely appealed. We granted a COA as
to “[w]hether or not Divers was denied his Sixth Amendment right to a speedy
trial and whether his purported waiver of that right was insufficient.” The
parties were ordered to brief “whether this claim was properly exhausted in the
state court and whether it was properly raised to the federal district court.”
                                   DISCUSSION
        The Sixth Amendment guarantees that for “all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.
VI. The right to a speedy trial is applied to the states via incoporation by the
Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina,
386 U.S. 213, 222-23 (1967). The Supreme Court has identified four factors that
should be weighed in determining whether a defendant has been denied his
speedy trial right: length of delay, reason for delay, assertion of the right by the
defendant, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530
(1972). The district court considered the speedy trial claim on the merits,
applying the Barker factors.
        There is a question of whether Divers presented this issue to the state
courts. The State concluded that Divers adequately presented this claim and it
expressly waived any issue of exhaustion in state court. See § 2254(b)(1)(A). The
exhaustion requirement “is not a jurisdictional prerequisite and, as a result, may
be waived by the State.” Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir.
1998).1 We accept the State’s waiver. See id. at 1065-66.


I.      Standard of Review
        Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal court may not grant habeas relief on “any claim that was adjudicated on


       1
        See generally 17B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 4264.7 (3d ed. 2012).

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the merits in State court proceedings” unless the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or was
“based on an unreasonable determination of the facts.” 28 U.S.C. §2254(d).
      Our threshold inquiry is whether Divers’ Sixth Amendment speedy-trial
claim was adjudicated on its merits in the state court proceedings. If it was,
then we may not grant relief unless the state courts’ application of federal law
was unreasonable. If not, then we review Divers’ speedy trial claim “under pre-
AEDPA standards of review,” which is de novo for this mixed question of law and
fact. Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003); see United States
v. Molina-Solorio, 577 F.3d 300, 303-04 (5th Cir. 2009).
      As for the appropriate standard of review, the State is amenable to our
assessing the Barker factors de novo while Divers has analyzed the issues under
AEDPA deferential standards. The governing standard of review is for this
court to determine, not the parties. Molina-Solorio, 577 F.3d at 303. We
examine the state court proceedings to determine how the speedy-trial
arguments were presented and resolved.
      In denying Divers’ petition for post-conviction relief, the state habeas court
found that with the exception of one claim not relevant here, his arguments had
been “previously considered and rejected” by the intermediate appellate court
and the supreme court. In light of this determination, we examine the “last clear
state court decision of any substance.” Woodfox v. Cain, 609 F.3d 774, 794 (5th
Cir. 2010).   The appeal from his second-degree murder convictions is the
instructive decision. State v. Divers, 889 So. 2d 335, 356-57 (La. Ct. App. 2004).
      The state court did not rest its decision on procedural grounds. It is not
entirely evident whether the court applied the Sixth Amendment’s right to a
speedy trial or only the similar guarantees granted by Louisiana law. See id.
(citing La. Code Crim. Proc. Ann. art. 582 and state caselaw). “When a federal
claim has been presented to a state court and the state court has denied relief,

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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 v. Richter, 131 S. Ct. 770, 784-85 (2011).
      The state court opinion gives no contrary indication. Under the heading
“Speedy Trial Violations,” the court substantively addressed the issue of whether
Divers’ case had timely proceeded to trial. State v. Divers, 889 So. 2d 335, 356-
57 (La. Ct. App. 2004). Although not explicitly invoking the U.S. Constitution
or federal caselaw, the state court’s analysis of state law went to the crux of the
Sixth Amendment speedy trial analysis. AEDPA does not require state courts
to explain their reasoning, “cite[,] or even be aware of” Supreme Court precedent
before benefitting from deference. Harrington, 131 S. Ct. at 784.
      Another circuit has written that deciding the merits of a case “using the
language of state law is a common practice” for courts confronted with, often
overlapping, federal and state claims. Childers v. Floyd, 642 F.3d 953, 968 (11th
Cir. 2011) (en banc). Judging this a sound principle, we conclude that the
Louisiana court should be considered to have resolved the federal constitutional
speedy-trial issue on the merits even though only the similar state rules and
authorities were mentioned. See, e.g., Priester v. Vaughn, 382 F.3d 394, 397 (3d
Cir. 2004) (applying AEDPA although “the Pennsylvania Superior Court cited
only Pennsylvania law with no reference to federal law”); Thomas v. Carroll, 581
F.3d 118, 124 (3d Cir. 2009) (“Although the Delaware Supreme Court cited only
state law in rejecting Thomas’ claims, that decision is entitled to AEDPA
deference,” in part, because “those state authorities were consistent with
applicable Supreme Court precedent.”).
      Affording deference here is particularly appropriate given that Divers’
arguments to the state courts prominently featured the Louisiana Code, while
giving comparatively less treatment to the federal Constitution.
      We now turn to the merits of the Section 2254 application.



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II.      Speedy Trial Claim
         AEDPA imposes “a highly deferential standard for evaluating state-court
rulings . . . .” Amos v. Thornton, 646 F.3d 199, 204 (5th Cir. 2011) (quotation
marks and citation omitted). Even if the state court was apparently wrong, the
decision must also be “objectively unreasonable, which is a substantially higher
threshold.” Id. (quotation marks and citation omitted).
         “Very few petitioners” can make the requisite showing, and due to the
somewhat indeterminate and fact-intensive nature of the speedy trial right, our
“always-substantial deference is at an apex.” Id. at 204-05. In resolving speedy
trial issues, we are to consider: “(1) the length of delay, (2) the reason for the
delay, (3) the defendant’s assertion of his right to speedy trial, and (4) prejudice
to the defendant.” Id. at 205 (quotation marks and citation omitted). These
factors are guides that require a delicate balancing. Id.
         1.   Length of the Delay
         Divers faced three separate sets of charges. The second-degree murder
convictions for which he is now incarcerated are based on an indictment issued
only months before the June 2003 re-trial. Before that, the operative indictment
dated to September 2002 when, following dismissal, new first-degree murder
charges were issued. His original first-degree murder indictment dated to 1988.
         Divers was in continuous custody from 1988 to 2003. He thus argues that
the pages of the speedy-trial calendar kept turning for 15 years until the 2003
second-degree murder trial. The State disagrees. It considers 14 months to be
the proper period for analysis. The State accepts the time from October 11,
1996, when the Louisiana Supreme Court denied reconsideration of its ruling
reversing Divers’ first-degree murder conviction until August 11, 1997, when
Divers’ attorney signed a joint motion to continue the trial. Second, the State
points to a period of inaction from February 7, 2003, when the defense withdrew
its pretrial motions, to the start of the second trial on June 2, 2003. According



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to the district court, a slightly longer 17-month period was pertinent, measured
from the remand for a new trial until Divers’ April 1998 motion to quash.
      Calculating time under the first Barker factor begins with “either a formal
indictment or information or else the actual restraints imposed by arrest and
holding to answer a criminal charge that engage the particular protections of the
speedy trial provision of the Sixth Amendment.” Dillingham v. United States,
423 U.S. 64, 65 (1975) (per curiam). When a defendant is free of the “actual
restraints imposed by arrest,” time periods between a withdrawn indictment and
a reindictment do “not count for Sixth Amendment purposes.” United States v.
Jackson, 549 F.3d 963, 971 (5th Cir. 2008) (quotation marks and citation
omitted); see also United States v. Loud Hawk, 474 U.S. 302, 310 (1986).
      Jackson was a case involving multiple indictments. There we assumed
that the initial charge started the period for the Sixth Amendment analysis, but
exempted the time between the indictment’s dismissal and its re-issuance
because the defendant had not been in custody for the offense in the interim.
Jackson, 549 F.3d at 971. In this case, Divers was not released from custody
when the 1988 indictment was dismissed in 1999.
      One year of delay is seen as a significant benchmark in the speedy trial
analysis. Goodrum v. Quarterman, 547 F.3d 249, 257 (5th Cir. 2008). Because
all the suggested time periods exceed one year, we conclude that Divers’ case
calls for “the full, four-step speedy-trial inquiry under Barker.” Amos, 646 F.3d
at 206. This first factor of length of delay weighs in Divers’ favor.
      2.    Reason for the Delay
      Any “delays explained by valid reasons or attributable to the conduct of
the defendant weigh in favor of the state.” Amos, 646 F.3d at 207 (citation
omitted). Virtually all of the delay in this case meets these criteria. Divers’
appealed his conviction in 1991 and it was not resolved until October of 1996.
In 1998, Divers filed to quash the indictment, then sought state appellate review



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of the trial court’s refusal. In 1999, the 1988 indictment was dismissed. Several
years of interlocutory appeal by the State followed.
      First, we consider the direct appeal.
      It has long been the rule that when a defendant obtains a reversal
      of a prior, unsatisfied conviction, he may be retried in the normal
      course of events. . . . This rule has been thought wise because it
      protects the societal interest in trying people accused of crime . . .
      and because it enhances the probability that appellate courts will be
      vigilant to strike down previous convictions that are tainted with
      reversible error.

Loud Hawk, 474 U.S. at 313 (quotation marks and citation omitted).

      This balance of interests “would be seriously undercut by an interpretation
given the Speedy Trial Clause that raised a Sixth Amendment obstacle to retrial
following successful attack on conviction.” Id. (quotation marks and citation
omitted). Divers benefitted from the five years of appeal; a prejudicially imposed
death sentence was lifted. Later a fairly constituted jury would convict him of
a lesser degree of murder.
      Nor is his claim strengthened by the passage of time after his motion to
quash was denied. “A defendant who resorts to an interlocutory appeal normally
should not be able upon return to the [trial] court to reap the reward of dismissal
for failure to receive a speedy trial.” Id. at 316.
      Considerable delay arose from litigation and negotiations over Divers’
pretrial motions. The time spent negotiating with Divers’ attorneys over how to
manage and respond to his counsel’s frequent motions between the 1988
indictment and 1991 trial, as well the 97 defense motions after remand was
“wholly justifiable.” Molina-Solorio, 577 F.3d at 305 (quotation marks and
citation omitted). “The essential ingredient is orderly expedition and not mere
speed.” United States v. Ewell, 383 U.S. 116, 120 (1966) (quotation marks and
citation omitted). The state court further found that after a new trial was
ordered, his lawyer’s injury contributed to the delay. See State v. Divers, 889 So.


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2d at 356; § 2254(e) (explaining that a fact finding “made by a State court shall
be presumed to be correct”).
       Fairminded jurists could conclude that it is not objectively unreasonable
to weigh this factor decisively against Divers. Harrington, 131 S. Ct. at 786.
       3.     Diligent Assertion of Right
       This last factor is “whether, in due course, the defendant asserted his right
to a speedy trial.” Doggett, 505 U.S. at 651. We consider Divers’ motion to quash
his indictment an assertion of his speedy trial right. See United States v.
Cardona, 302 F.3d 494, 499 (5th Cir. 2002). Simply asserting this right, though,
“does not automatically cause this factor to weigh in a defendant’s favor,” as a
“defendant who waits too long to assert his right will have his silence weighed
against him.” Molina-Solorio, 577 F.3d at 306. Waiting fourteen months until
asserting the right to a speedy trial has caused us to count this factor against a
defendant. United States v. Parker, 505 F.3d 323, 330 (5th Cir. 2007). The fact
that Divers delayed his objection for 17 months after remand until April 24,
1998, significantly impairs his claim. He also requested several continuances
before filing the motion to quash. State v. Divers, 889 So. 2d at 356. The state
court concluded that, at least as to the prescriptive period under Louisiana law,
counsel for Divers affirmatively waived any objection.                 Id. at 357.2     This
conclusion is sound.
       4. Prejudice to the Defendant
       When assessing the first three factors, we decide “whether the defendant
bears the burden to put forth specific evidence of prejudice (or whether it is
presumed).” Cardona, 302 F.3d at 498 (quotation marks and citation omitted).
Given that, at best, Divers can claim only one factor in his favor, the burden
rests with him. See Amos, 646 F.3d at 208 n.42 (discussing that we previously



       2
        The State has not pursued the argument invited by our COA concerning whether
Divers waived his constitutional right to a speedy trial; we do not consider that possibility.

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found no presumption of prejudice warranted despite “two of the first three
Barker factors weigh[ing] heavily in the defendant’s favor”) (citation omitted).
      Divers has not identified any actual prejudice. Prejudice accounts for at
least these interests: “(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.” Barker, 407 U.S. at 532. Neither of the first two
concerns are implicated because either justifiable government actions or steps
by Divers’ own counsel contributed to most of the delay in this case. The third
consideration is the “most serious . . . because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Id. On
this consideration, Divers points to nothing specific on appeal for us to evaluate.
      Divers’ road to his present conviction has been unusual and protracted.
Still, based upon the absence of prejudice, the justifiable nature of the delay, and
his failure to make a timely invocation of his speedy-trial right, fairminded
jurists could conclude that it is not objectively unreasonable to reject the claim
of a Sixth Amendment violation here.
      AFFIRMED.
      Chief Judge Stewart concurs in the judgment only.




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