                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 19a0434n.06

                                       Case No. 19-3005

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Aug 20, 2019
JAMES RICE,                                         )                  DEBORAH S. HUNT, Clerk
                                                    )
        Petitioner - Appellant,
                                                    )
                                                    )     ON APPEAL FROM THE UNITED
v.
                                                    )     STATES DISTRICT COURT FOR
                                                    )     THE SOUTHERN DISTRICT OF
WARDEN, WARREN CORRECTIONAL
INSTITUTION,                                        )     OHIO
                                                    )
        Respondent - Appellee.
                                                    )


        BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.

        JOHN K. BUSH, Circuit Judge. Law enforcement in Hamilton County, Ohio, waited

nineteen months between filing a felony complaint against James Rice and indicting him. Rice

now brings this habeas petition, asserting that the nineteen-month delay violated his Sixth

Amendment right to a speedy trial. For the reasons below, we AFFIRM the district court’s denial

of the petition.

                                               I.

        The facts in this case are not in dispute. On October 31, 2012, Rice began a two-year

sentence at the London Correctional Institution following a Butler County conviction for

possessing a weapon under a disability and for possession of drugs. On January 30, 2013, an

officer with the Hamilton County Sheriff’s Office swore out a complaint and warrant against Rice

on suspicion of burglary. A little over a year and a half later, on July 30, 2014, the Ohio

                                               1
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


Department of Rehabilitation and Corrections (“ODRC”) notified the Hamilton County Sheriff’s

Office that Rice would be released on August 19, 2014. On the day of Rice’s release, August 19,

an officer with the Hamilton County Sheriff’s Office traveled to London Correctional Institution

and arrested him on the burglary charges.

       Nine days later, on August 28, 2014 (roughly nineteen months after the Hamilton County

officer swore a complaint against Rice and a warrant was issued for his arrest), Rice was indicted

for aggravated robbery and aggravated burglary. On December 1, 2014, Rice moved to have the

indictment dismissed for violation of his Sixth Amendment right to a speedy trial, but the trial

court denied that motion and Rice was convicted at trial. The Ohio Court of Appeals affirmed

Rice’s conviction, and the Ohio Supreme Court declined to hear the matter. Rice then filed the

instant habeas petition, which the district court denied, although it nonetheless issued a certificate

of appealability.

                                                 II.

       “In an appeal from the denial of habeas relief, we review the district court’s legal

conclusions de novo and its factual findings for clear error.” Scott v. Houk, 760 F.3d 497, 503 (6th

Cir. 2014) (citation omitted). Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we can overturn a state conviction for an issue adjudicated on the merits only if the

relevant state-court decision was (1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States;” or

(2) “based on an unreasonable determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d).

       As is relevant here, under the “unreasonable application” prong of this section, a “federal

habeas court may not issue the writ simply because that court concludes in its independent




                                                  2
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


judgment that the state-court decision applied [a Supreme Court case] incorrectly.” Price v.

Vincent, 538 U.S. 634, 641 (2003) (alteration in original) (citation omitted). Rather, “[i]n order

for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’

the state court’s decision must have been more than incorrect or erroneous[; it] must have been

‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v.

Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. 362, 409 (2000)). “An incorrect

or erroneous application of clearly established federal law is not the same as an unreasonable one;

‘relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so

obvious that a clearly established rule applies to a given set of facts that there could be no

“fairminded disagreement” on the question.’” Unger v. Bergh, 742 F. App’x 55, 60 (6th Cir. 2018)

(quoting White v. Woodall, 572 U.S. 415, 427 (2014)). “This is a difficult to meet . . . and highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation

marks and citations omitted). And it is a standard for which “[t]he petitioner carries the burden of

proof.” Ibid. (citation omitted). The parties agree that the Ohio appellate court adjudicated the

issues in this appeal on the merits, so we therefore apply AEDPA deference.

                                                III.

       The Sixth Amendment guarantees in relevant part that “[i]n all criminal prosecutions, the

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

Amendment incorporates the right to a speedy trial against the states. Klopfer v. North Carolina,

386 U.S. 213, 223 (1967). “The purpose of the speedy-trial guarantee is to protect the accused

against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal




                                                 3
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


charges, and the risk that evidence will be lost or memories diminished.” Brown v. Romanowski,

845 F.3d 703, 712 (6th Cir. 2017) (collecting cases).

       In Barker v. Wingo, the Supreme Court established a four-factor test for determining

whether one’s constitutional right to a speedy trial has been violated: (1) the length of the delay;

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

defendant. 407 U.S. 514, 530 (1972). “[N]one of the four factors [is] either a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are

related factors and must be considered together with such other circumstances as may be relevant.”

Id. at 533. And even if all four Barker factors are satisfied, a court is not required to conclude that

a defendant’s speedy trial right has been violated. Id.

       A.      The Length of the Delay

       The first Barker factor—the length of the pre-trial delay—functions both as a triggering

mechanism and as a measure of the severity of the prejudice suffered by an accused. First, the

delay must be lengthy enough to trigger a constitutional analysis at all, “since, by definition,

[a defendant] cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact,

prosecuted his case with customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52

(1992) (citing Barker, 407 U.S. at 530–31). Delays of over a year “generally” satisfy the

lengthiness requirement, thereby triggering the full Barker analysis. Id. at 652 n.1. Once this

threshold has been crossed, the length of the delay takes on an additional relevancy because “the

presumption that pretrial delay has prejudiced the accused intensifies over time.” Id. at 652.

       The Ohio appellate court held that “Rice’s speedy-trial rights attached on January 30, 2013,

when the felony complaint affidavit, and arrest warrant were filed against him.” State v. Rice,

57 N.E.3d 84, 89 (Ohio Ct. App. 2015) (citing State v. Adams, 45 N.E.3d 127, 148 (Ohio 2015)).




                                                  4
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


Counting from January 30, 2013, to August 28, 2014, the date on which Rice was indicted, results

in a delay of 575 days, or just under nineteen months.1 The state court observed that the period

between the complaint and indictment was sufficient, standing alone, to deserve further speedy-

trial analysis under Barker. Rice, 57 N.E.3d at 90. Neither party challenges this conclusion, and

we therefore accept it for purposes of this appeal.2




1
  Presumably rounding down, the Ohio appellate court determined that the delay was “18 months.” Rice, 57 N.E.3d
at 90. We will continue to refer to a nineteen-month delay, as that more accurately reflects the period as calculated
by the Ohio Appellate court.
2
  We need not address whether the Ohio appellate court’s understanding of which events trigger the attachment and
detachment of the Sixth Amendment right to a speedy trial constitutes an unreasonable application of Supreme Court
precedent. Doggett held that one’s speedy-trial rights are “triggered by arrest, indictment, or other official
accusation.” 505 U.S. at 655 (emphasis added). The Ohio appellate court, citing Ohio state law, considered the felony
complaint affidavit and arrest warrant issued against Rice to be official accusations under Doggett. Although the Sixth
Circuit has not considered whether an Ohio felony complaint affidavit and arrest warrant constitute an official
accusation, other courts to have considered similar issues have not interpreted Doggett so broadly. See, e.g., United
States v. Richardson, 780 F.3d 812, 814–16 (7th Cir. 2015) (holding that filing a federal complaint, affidavit of
probable cause, and detainer does not trigger the speedy-trial right); United States v. Pierce, 74 F. Supp. 2d 661, 663
n.2 (S.D.W.V. 1999) (noting that a defendant would have a “significant uphill battle” showing that the issuance of a
federal criminal complaint and arrest warrant triggered the speedy-trial right); People v. Martinez, 996 P.2d 32, 42
(Cal. 2000) (holding that the “defendant’s speedy trial right under the federal Constitution’s Sixth Amendment did
not attach upon the filing of the felony complaint or the issuance of the arrest warrant.”); see also United States v.
Brown, 498 F.3d 523, 527 (6th Cir. 2007) (“[T]he Sixth Amendment’s speedy-trial guarantee, which explicitly refers
to ‘the accused,’ does not apply until an individual is arrested or indicted.” (quoting United States v. Marion, 404 U.S.
307, 312, 321 (1971))). To the degree that the Ohio appellate court’s analysis reflected a concern for the rights of
individuals who have not yet been subject to formal arrest or indictment (or the Ohio cognates thereof), we note that
although the “Sixth Amendment’s Speedy Trial Clause . . . does not attach until . . . a defendant is arrested or formally
accused,” statutes of limitation protect against the prosecution of stale charges and the “Due Process Clause” acts “as
a safeguard against fundamentally unfair prosecutorial conduct” that causes pre-arrest and pre-indictment delay.
Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016) (citing United States v. Lovasco, 431 U.S. 783, 789 (1977), and
Marion, 404 U.S. at 312, 320–21). Rice’s constitutional right to a speedy trial, then, may not have attached until he
was arrested on August 19, 2014.
As for when to measure speedy trial rights at the other end, we do not suggest that speedy-trial rights terminate at
indictment. That would be clearly inconsistent with Doggett’s clear statement that these rights attach in the first place
at the time of “arrest, indictment, or other official accusation.” 505 U.S. at 655. Like the Ohio state court, we
emphasize here the period between the complaint and indictment only because that is how Rice himself framed his
claim—he argues only that this specific period was unconstitutionally drawn-out. See Rice, 57 N.E.3d at 88 (“Rice
first argues that the state violated his speedy-trial rights under the Sixth Amendment . . . by failing to timely indict
him for the aggravated-burglary and aggravated-robbery offenses.”). And since the state does not argue that any
portion of that timeframe should be excluded for purposes of analyzing Rice’s speedy-trial claim, we accept it for our
purposes.



                                                           5
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


       B.      The Reason for the Delay

       The second Barker factor is “the reason the government assigns to justify the delay.”

Barker, 407 U.S. at 531. “A deliberate attempt to delay the trial in order to hamper the defense

should be weighted heavily against the government,” while a “more neutral reason such as

negligence or overcrowded courts should be weighted less heavily but nevertheless should be

considered since the ultimate responsibility for such circumstances must rest with the government

rather than with the defendant.” Ibid. And finally, “a valid reason, such as a missing witness,

should serve to justify appropriate delay.” Ibid.

       The Ohio appellate court found that the delay was caused by the fact that the officer

handling Rice’s case would generally wait “for the ODRC to contact his department when [a]

defendant was ready to be transported or released” and so “made no attempt to serve Rice with the

criminal complaint” until Rice was released. Rice, 57 N.E.3d at 90. Because the government bore

responsibility for the delay, but the delay was not part of a deliberate attempt to hamper Rice’s

defense, the Ohio Appellate Court held that “the second factor weighs slightly against the state

and in favor of Rice.” Ibid.

       Neither party complains that this conclusion is in error, and we therefore accept it for

purposes of this appeal.

       C.      Rice’s Assertion of his Right

       The third Barker factor, the defendant’s assertion of his right to a speedy trial, “is entitled

to strong evidentiary weight in determining whether the defendant is being deprived of the right.”

Barker, 407 U.S. at 531–32. “Although a defendant does not waive the right to a speedy trial by

failing to assert it, the degree to which the defendant has asserted the right is one of the factors to

be considered in the balance.” United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999) (citing




                                                    6
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


Barker, 407 U.S. at 531–32). This factor is a measure of how quickly the defendant asserted his

right to a speedy trial “in the context of the overall delay.” United States v. Watford, 468 F.3d

891, 907 (6th Cir. 2006). And a defendant is not penalized for failing to assert his speedy-trial

right before he becomes aware that he has been charged. See Brown, 169 F.3d at 350.

           Rice asserted his right to a speedy trial on December 1, 2014. Rice, 57 N.E.3d at 90. This

was about three-and-a-half months after Rice was arrested for the Hamilton County charges on

August 19, 2014.3 The Ohio appellate court found that Rice bore responsibility for this additional

three-and-a-half-month delay and that the third Barker factor “weighs slightly in the state’s favor.”

Rice, 57 N.E.3d at 90.

           Rice argues that the Ohio appellate court was unreasonable for not considering that he

“filed a lengthy and complex motion to assert his right to a speedy trial” when it determined

whether he was responsible for the just-over-three-month delay, as well as for failing to measure

the delay against the government’s longer delay. In the context of AEDPA, neither argument is

convincing.

           As the district court noted, although Rice’s “motion to dismiss had fifty-one pages of

exhibits, most were public records and none were the result of independent investigation” by his

counsel. Rice v. Harris, Case No. 1:17-cv-293, 2018 WL 4853502, at *1 (S.D. Ohio Oct. 5, 2018).

The Ohio appellate court was therefore not unreasonable in finding that Rice bore some

responsibility for not asserting his speedy-trial right more promptly. And Sixth Circuit precedent

shows that the Ohio appellate court was not unreasonable in finding this factor weighed slightly in

the state’s favor. In United States v. Schreane, we held that a four-month-and-three-week delay

in invoking the speedy-trial right, when weighed against a total delay of twenty-nine months,



3
    Now rounding up, the Ohio appellate court referred to this as a four-month delay. Rice, 57 N.E.3d at 90.


                                                           7
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


weighed against the defendant. 331 F.3d 548, 557 (6th Cir. 2003). The defendant’s delay in

Schreane constituted approximately one-sixth of the total delay, and Rice’s three-and-a-half-

month delay in asserting his rights is only a marginally lower proportion of the total delay in this

matter. Given the deference due to the Ohio appellate court under AEDPA, we will not unsettle

that court’s conclusion that the third Barker factor weights slightly against Rice.

        D.       Prejudice to Rice

        The last Barker factor is concerned with the prejudice suffered by the defendant.

“A defendant must show that ‘substantial prejudice’ has resulted from the delay.” Schreane,

331 F.3d at 557 (quoting United States v. White, 985 F.2d 271, 276 (6th Cir. 1993)). “[P]rejudice[]

should be assessed ‘in the light of’ three interests: (1) to prevent oppressive pretrial incarceration,

(2) to minimize anxiety and concern due to unresolved criminal charges, and (3) to minimize

damage to the defense.” Sutton, 862 F.3d at 561–62 (quoting Barker, 407 U.S. at 532).

        Rice does not argue that the delay caused any anxiety or concern due to the unresolved

Hamilton-County charges; after all, he asserts he did not even know about those charges until he

was arrested. Rice instead argues that he was prejudiced by the delay because it increased his

potential period of incarceration by denying him the possibility of serving his sentence for the

Hamilton-County crime concurrently with his sentence for the Butler-County crime, and because

evidence available to Rice degraded or was lost during the delay.4

        In Smith v. Hooey, the Supreme Court held that a prisoner may be prejudiced by a pre-trial

delay because “the possibility that the defendant already in prison might receive a sentence at least




4
  Rice also cites Doggett for the proposition that delays approaching a year are “presumptively prejudicial.” As
Doggett makes clear, however, “‘presumptive prejudice’ does not necessarily indicate a statistical probability of
prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker
enquiry.” 505 U.S. at 652 n.1. This is just to say that, as already noted, the delay suffered by Rice satisfied the
threshold inquiry mandated by the first Barker factor.


                                                        8
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


partially concurrent with the one he is serving may be forever lost if trial of the pending charge is

postponed.” 393 U.S. 374, 378 (1969). The Ohio appellate court found that Rice’s having lost the

possibility of concurrent sentences did prejudice him but cited Sixth Circuit precedent in holding

that “the theoretical and speculative loss” of concurrent sentences was insufficient to satisfy the

fourth Barker factor. Rice, 57 N.E.3d at 92 (citing White, 985 F.2d at 276). That is exactly what

White held, and it was not unreasonable for the Ohio appellate court to apply White when

interpreting Hooey and Barker. See White, 985 F.2d at 276 (That the defendant “was prevented

from having . . . two sentences run concurrently . . . is not sufficient to constitute ‘substantial

prejudice’” under the fourth Barker factor.” (internal citation removed)).

         Rice also argues that the delay damaged his defense because evidence available to Rice

degraded or was lost during the delay. The district court refused to address this issue, holding that

Rice “forfeited this argument by failing to raise it in his pleadings.” Rice v. Harris, Case No.

1:17-cv-293, 2018 WL 6510558, at *2 (S.D. Ohio Dec. 11, 2018). Rice challenges this holding,

arguing that he raised the argument in his traverse before the district court. But “‘[r]aising [an]

issue for the first time in a reply brief [in the district court] does not suffice’ to preserve the

argument for appeal.” Barany-Snyder v. Weiner, 539 F.3d 327, 331–32 (6th Cir. 2008) (alterations

in original) (quoting Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)). Rice

accordingly forfeited this argument by failing to raise it in his petition.5 See Tyler v. Mitchell,


5
  The state’s argument before us regarding the claim of lost or degraded evidence is solely that Rice failed to raise that
prejudice argument in either state court or in his federal court pleadings. Rice’s main brief before us points out
(correctly) that Rice argued such prejudice from delay in his state appellate brief (though not in his original motion to
dismiss) and in his federal court traverse (though not in his original habeas petition). The state replies to these points
only as follows: “the District Court correctly determined that any claim of prejudice from the loss of evidence is
forfeited by Rice’s failing to raise it in the state courts and alternatively, if Rice did raise this claim in the state courts,
he failed to raise it in his District Court pleadings and it is forfeited on that basis.” State Br. at 26 (cleaned up). An
appellee may of course decline to provide a response to an argument presented by an appellant, though that may not
be wise, or helpful to the court. It is not acceptable, however, for state counsel to mischaracterize the record by
indicating that Rice failed altogether to raise the prejudice issue in the state courts, when Rice’s brief contains record
citations showing that Rice did not altogether fail to raise the prejudice issue in state court. The state’s


                                                               9
Case No. 19-3005, Rice v. Warden, Warren Correctional Institution


416 F.3d 500, 504 (6th Cir. 2005) (“Because the . . . argument was first presented in [petitioner’s]

traverse rather than in his habeas petition, it was not properly before the district court, and the

district court did not err in declining to address it.” (citations omitted)).

                                                      ***

        Given the deference owed to state courts under AEDPA, we cannot conclude that the Ohio

appellate court unreasonably applied Supreme Court precedent in evaluating the Barker factors.

And because Rice has not cited any Supreme Court precedent recognizing a Sixth Amendment

speedy-trial violation on facts remotely similar to those in this case, we cannot conclude that the

Ohio appellate court unreasonably applied Supreme Court precedent in weighing those factors.

We therefore AFFIRM.




mischaracterization does not change the outcome here, because Rice’s forfeiture ultimately turns on his lateness in
raising the argument in federal court.


                                                        10
