     Case: 09-60778   Document: 00511533383     Page: 1   Date Filed: 07/07/2011




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

                                                                    FILED
                                                                    July 7, 2011

                                  No. 09-60778                    Lyle W. Cayce
                                                                       Clerk

ROMMEL A. AMOS

                                             Petitioner–Appellant
v.

JOE THORNTON

                                             Respondent–Appellee



                 Appeals from the United States District Court
                    for the Southern District of Mississippi


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:
        Rommel A. Amos, a prisoner in the custody of the state of Mississippi,
appeals the district court’s dismissal of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Amos contends that he was denied his right to a speedy
trial and that his lawyer provided ineffective assistance of counsel by failing to
move for a speedy trial. The Mississippi Supreme Court determined these
claims to be without merit. Because Amos cannot show that this determination
was objectively unreasonable, we affirm the dismissal of his petition.
                                        I.
        Walter Vance was shot dead by Amos’s hand in Holmes County,
Mississippi, on Halloween night 2001. That evening, Amos and his friend Aaron
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                                       No. 09-60778
Hudson had decided to walk from Hudson’s home to the home of a friend who
lived nearby. On their way, they encountered a group of people that included
Vance and Vance’s friend Christopher Claiborne. After Vance insulted Amos’s
headgear, a physical altercation ensued between Vance, Claiborne, and Amos.
At some point thereafter, Amos came into possession of a .22 caliber pistol. He
fired five shots from it. Four of them hit Vance, causing his death.
      Amos fled to Chicago the day after Vance’s death. He was arrested in
Chicago on December 21, 2001, under an Illinois statute that requires the arrest
and extradition of any person found in Illinois who has fled from justice after
being charged with a felony by another state.1 Amos demanded a speedy trial
on the day he was arrested and made two additional speedy-trial demands while
he was in custody in Illinois, one on January 18, 2002, the other on January 29.
Amos waived extradition and consented to be returned to Mississippi on
February 6, 2002. Amos was not indicted in Mississippi until July 16, 2002; he
was arrested on July 26. The record is silent as to the date on which Amos was
extradited to Mississippi. Nor does the record contain any explanation for the
five-month delay between Amos’s waiver of extradition in Illinois and his arrest
in Mississippi. Three days after his arrest, Amos filed a pro se motion for a
speedy trial. The trial court never acted on this motion. The court initially set
Amos’s case for trial on February 13, 2003, but the trial was continued and did
not begin until April 29, 2003. The record contains no explanation of the reasons
for this two-and-a-half-month continuance. The net result, then, was that Amos
was in custody for a little more than sixteen months between the time he was
first arrested and the time his trial began.
      At trial, Amos advanced a theory of self defense. According to Amos, after
he responded angrily to Vance’s insulting his headgear, Vance, Claiborne, and


      1
          See 725 ILL. COMP. STAT. 225/2.

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                                       No. 09-60778
another person violently assaulted him, punching him, kicking him, and beating
him with a liquor bottle. As the beating was going on, Hudson returned to his
home, retrieved Amos’s pistol, returned to the site of the beating, and handed
the pistol to Amos, who then fired it toward his assailants. Alexis Noel,
Hudson’s girlfriend, also testified that Hudson retrieved the gun and then
passed it to Amos while Amos was being beaten. However, Hudson denied that
he retrieved the gun and brought it to Amos during the beating. Rather, Hudson
testified that Amos came back to Hudson’s home about five or ten minutes after
the beating, retrieved the gun himself, walked back outside, and then shot
Vance. Claiborne denied that he and Vance had assaulted Amos. Claiborne
testified that after Vance insulted Amos, Amos became extremely angry. Vance
and Claiborne shoved Amos to the ground but then helped him back up; no
assault took place. Afterwards, Amos walked away, retrieved the gun from
Hudson, pursued Vance and Clairbone, and shot Vance in the back. Katrina
Venable, who was among the group of people Amos and Hudson encountered,
corroborated Claiborne’s account of the events giving rise to the shooting. The
jury rejected Amos’s self-defense claim and convicted him of murder. The court
sentenced him to life in prison.
      Amos then sought relief on both direct and collateral review. Amos alleged
manifold claims for relief on his state-court direct appeal, including both of the
claims at issue on this appeal. The Court of Appeals of Mississippi determined
that both claims were without merit.2 However, Amos did not petition the
Mississippi Supreme Court for a writ of certiorari, so his inclusion of these
claims in his direct appeal did not exhaust them for federal habeas purposes.3
Next, Amos moved for permission to seek post-conviction relief in the Mississippi


      2
          See Amos v. State, 911 So. 2d 644, 649–50 & 657 (Miss. Ct. Ap. 2005).
      3
          See O’Sullivan v. Boerckel, 526 U.S. 838, 845–47 (1999).

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Supreme Court. This motion, too, alleged numerous claims for relief. The court
denied the motion on the grounds that Amos’s ineffective-assistance-of-counsel
claims “do not pass the standard set forth in Strickland v. Washington” and
denied the remaining claims, including the speedy-trial claim, on the alternative
bases that they were procedurally barred and without merit. Amos then turned
to federal district court, where he filed a habeas petition pressing twenty
separate claims for relief (including an ineffective-assistance claim that
identified thirty-five separate instances of allegedly ineffective representation).
The district court denied the petition in its entirety. We granted a certificate of
appealability on Amos’s claim that he suffered a violation of his constitutional
right to a speedy trial, which the district court determined was procedurally
barred,4 and on his claim that his lawyer’s failure to file a motion for a speedy
trial violated his right to the effective assistance of counsel, which the district
court determined was without merit.
                                               II.
       The Sixth Amendment guarantees every criminal accused “the right to a
speedy . . . trial.”5 Whether a criminal defendant has been deprived of his right

       4
          Even though the district court was correct to conclude that Amos procedurally
defaulted his speedy-trial claim, see Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999), it
nonetheless erred by applying the doctrine of procedural bar. The State’s response to Amos’s
petition did not contend that Amos had procedurally defaulted his speedy-trial claim, and we
have previously held that it is an abuse of discretion for a district court to sua sponte apply
“the procedural bar defense when the petitioner has absolutely no notice or opportunity to
respond,” Prieto v. Quarterman, 456 F.3d 511, 518 (5th Cir. 2006). Amos argues that we must
vacate the judgment and remand this matter to the district court so that it can review his
claim on the merits. Not so. An error is grounds for reversal only if it is not harmless, FED
R. CIV. P. 61, and any error that does affect the losing party’s substantial rights is harmless,
e.g. United States v. Guillermo Balleza, 613 F.3d 432, 434 (5th Cir.) (per curiam), cert. denied,
131 S. Ct. 680 (2010). In light of our determination that Amos is not entitled to relief on his
speedy-trial claim, see infra Section II, the district court’s error in dismissing that claim as
procedurally barred was harmless, and remand is unnecessary. See generally Scott v.
Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (“[T]his Court may affirm the denial of habeas
relief on any ground supported by the record.”).
       5
           U.S. CONST. amend VI.

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to a speedy trial is a mixed question of law and fact.6 Under the Antiterrorism
and Effective Death Penalty Act, we review a state court’s resolution of a mixed
question of law and fact under the deferential standard of 28 U.S.C.
§ 2254(d)(1).7 Accordingly, Amos is entitled to relief only if the state court’s
rejection of his speedy-trial claim resulted in a decision that was contrary to, or
involved an objectively unreasonable application of, clearly established federal
law as articulated in the decisions of the Supreme Court.8
       Section 2254(d)(1) imposes a “‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.”9 It is not enough for a petitioner to show that a state
court’s decision was incorrect or erroneous; he must show that the decision was
objectively unreasonable, which is “a substantially higher threshold.”10 Very few
petitioners can make this showing.11 “As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on
the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond



       6
         United States v. Villareal, 613 F.3d 1344, 1349 (11th Cir. 2010); United States v.
Wanigasinghe, 545 F.3d 595, 597 (7th Cir. 2008); United States v. Brown, 498 F.3d 523, 530
(6th Cir. 2007).
       7
           E.g., Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir. 2008).
       8
           See Goodrum v. Quarterman, 547 F.3d 249, 256 (5th Cir. 2008).
       9
         Cullen v. Pinholster, 131 S. Ct. 1388, 3198 (2011) (quoting Woodford v. Viscotti, 537
U.S. 19, 24 (2002) (per curiam)).
       10
         Schiro v. Landrigan, 550 U.S. 465, 473 (2007); see also Lockyer v. Andrade, 538 U.S.
63, 75–76 (2003).
       11
        See Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“It bears repeating that even
a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable. . . . If this standard is difficult to meet, that is because it was meant to be.”).


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                                          No. 09-60778
any possibility for fairminded disagreement.”12 In assessing the reasonableness
of a state court’s application of clearly established federal law, our review “is
limited to the record that was before the state court.”13
       Two features of AEDPA deference are particularly pertinent to our
analysis of Amos’s speedy-trial claim. First, this always-substantial deference
is at an apex when we are reviewing a state court’s application of a broad,
general standard whose application “to a specific case can demand a substantial
element of judgment.”14 Determining whether a defendant’s speedy-trial right
has been violated requires the application of just such a standard. As the
Supreme Court explained in its seminal decision in Barker v. Wingo, the right
to a speedy trial “is a more vague concept than other procedural rights,” and it
is “impossible to determine with precision when the right has been denied. . . .
[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the
right in the particular context of the case.”15 Barker identified four factors that
structure the inquiry into whether a defendant has been deprived of his right to
a speedy trial: “(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.”16        This four-factor balancing test eschews “rigid rules” and
“mechanical factor-counting” in favor of “‘a difficult and sensitive balancing




       12
            Id. at 786–87.
       13
            Pinholster, 131 S. Ct. at 1398.
       14
            Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
       15
         Barker v. Wingo, 407 U.S. 514, 521–22 (1972); see also Gray v. King, 724 F.2d 1199,
1202 (5th Cir. 1984) (“What is acceptable in one case . . . may not be so in another; much
depends on the complexity of the case.”).
       16
            Goodrum, 547 F.3d at 257 (citing Barker, 407 U.S. at 530).

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                                          No. 09-60778
process.’”17 Section 2254(d)(1) thus requires us to give the widest of latitude to
a state court’s conduct of its speedy-trial analysis.
       Second, the deference due under § 2254(d)(1) is not diminished by the fact
that the Mississippi Supreme Court did not explain the reasons for its
determination that Amos’s claim is without merit. “Where a state court's
decision is unaccompanied by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to
deny relief.”18 To assess whether a petitioner has made this showing, we
determine “what arguments or theories . . . could have supported[] the state
court’s decision” and then ask whether fairminded jurists could conclude that
those arguments and theories are consistent with the Supreme Court’s relevant
teachings.19 If there is any objectively reasonable basis on which the state court
could have denied relief, AEDPA demands that we respect its decision to do so.
With these guiding principles in mind, we turn to an analysis of Barker’s four-
factor balancing test.
       “Barker’s first factor, length of delay, performs a dual function.”20 Initially,
it operates as a screening device.21 “Simply to trigger a speedy trial analysis, an
accused must allege that the interval between accusation and trial has crossed
the threshold” that separates ordinary delay from “‘presumptively prejudicial’
delay.”22 If the accused can make this threshold showing, we next “‘consider, as

       17
            Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993) (quoting Barker, 407 U.S. at 533).
       18
            Richter, 131 S. Ct. at 784.
       19
            Id. at 786.
       20
            Nelson, 989 F.2d at 851.
       21
          See Barker, 407 U.S. at 530 (“The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.”).
       22
            Doggett v. United States, 505 U.S. 647, 651–52 (1992).

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one factor among several, the extent to which the delay stretches beyond the
bare minimum needed to trigger judicial examination of the claim.’”23
       As to the first of these functions, we conclude that Amos has made a
threshold showing of presumptively prejudicial delay. A defendant’s right to a
speedy trial “attaches at the time of arrest or indictment, whichever comes
first.”24 The delay between arrest or indictment and trial crosses the line from
“ordinary” to “presumptively prejudicial” somewhere around the one-year
mark.25 Here, a little more than sixteen months elapsed between Amos’s arrest
in Illinois and the beginning of his trial in Mississippi. This is sufficient to
trigger the full, four-step speedy-trial inquiry under Barker.26
       We turn now to the second function performed by Barker’s first factor, an
inquiry into “the extent to which the delay extends beyond the bare minimum


       23
            Nelson, 989 F.2d at 851 (quoting Doggett, 505 U.S. at 652).
       24
          Id; see also Robinson v. Whitley, 2 F.3d 562, (5th Cir. 1993) (“The relevant period of
delay is that following accusation, either arrest or indictment, whichever occurs first.” (citing
Dillingham v. United States, 423 U.S. 64 (1975)).
       25
          See United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003) (citing United
States v. Bergfield, 280 F.3d 486, 488 (5th Cir. 2002)); see also Nelson, 989 F.2d at 851 (citing
Doggett, 505 U.S. at 652 n.1).
       26
          The State contends that Amos suffered from only an eight-month delay, reasoning
that because “Mississippi lacked jurisdiction over Amos until his extradition” from Illinois, the
speedy-trial clock “could not have begun to run” until Amos was indicted in July of 2002.
Amos, 911 So. 2d at 649. However, the fact that an accused is in the custody of another
sovereign does not absolve a state of its responsibility under the Speedy Trial Clause to
prosecute the accused with customary dispatch. Smith v. Hooey, 393 U.S. 374, 377–83 (1969);
Prince v. Alabama, 507 F.2d 693, 700–02 (5th Cir. 1975). That rule applies with particular
force here, since Amos’s arrest in Illinois came at Mississippi’s behest, see Amos, 911 So.2d at
649; 725 ILL. COMP. STAT. 225/3; supra note 1, and there is no indication that Amos attempted
to frustrate or delay his extradition, see Braden v. Capps, 517 F.2d 221, 223 n.4 (5th Cir.
1975); see also United States v. Manning, 56 F.3d 1188, 1195 (9th Cir. 1995). Under these
circumstances, Amos’s right to a speedy trial attached at the time of his arrest in Illinois, and
the eight months that lapsed between his arrest there and his indictment in Mississippi must
be included in the calculation of the total pretrial delay. See Smith, 393 U.S. at 382 (criticizing
a state court for “allowing doctrinaire concepts of ‘power’ and ‘authority’ to submerge the
practical demands of the constitutional right to a speedy trial”).

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                                        No. 09-60778
required to trigger a Barker analysis,”27 which is particularly “significant to the
speedy trial analysis because . . . the presumption that pretrial delay has
prejudiced the accused intensifies over time.”28 The bare minimum required to
trigger a Barker analysis is one year.29 A delay must persist for at least eighteen
months over and above that bare minimum for this factor to strongly favor the
accused.30 The delay between Amos’s arrest and trial only exceeded the one-year
minimum by about four months. We have previously concluded that such a
delay, “[a]lthough long enough to prompt a full Barker-analysis,” is “not long
enough to weigh heavily in favor” of the accused,31 and we see no reason to draw
a different conclusion here.
       Next we consider the reasons for the delay.                  The burden is on the
Government to “assign[] reasons to justify the delay.”32 Different reasons are
entitled to different weight:
       At one extreme, a deliberate delay to disadvantage the defense is
       weighted heavily against the state. At the other end of the
       spectrum, delays explained by valid reasons or attributable to the
       conduct of the defendant weigh in favor of the state. Between these

       27
            Goodrum, 547 F.3d at 258.
       28
            Doggett, 505 U.S. at 652.
       29
          See supra note 18; see also Doggett, 500 U.S. at 658 (identifying one year as the
length of delay that is “generally sufficient to trigger judicial review”).
       30
         See Goodrum, 547 F.3d at 258; see also United States v. Molina-Solorio, 577 F.3d 300,
305 (5th Cir. 2009) (collecting cases).
       31
          United States v. Frye, 372 F.3d 729, 737 (5th Cir. 2004) (describing a post-indictment
delay of “approximately 16 months”); see also United States v. Parker, 505 F.3d 323, 328–29
(5th Cir. 2007) (“As for length of delay, the seventeen-month period . . . does not weigh in [the
accused’s] favor.”).
       32
          Barker, 407 U.S. at 531; see also United States v. Ingram, 446 F.3d 1332, 1337 (11th
Cir. 2006) (“‘Because the prosecutor and the court have an affirmative constitutional obligation
to try the defendant in a timely manner ... the burden is on the prosecution to explain the
cause of the pre-trial delay.’” (quoting United States v. Brown, 169 F.3d 344, 349 (6th Cir.
1999))); McNeely v. Balanas, 336 F.3d 822, 827 (9th Cir. 2003) (collecting cases).

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       extremes fall unexplained or negligent delays, which weigh against
       the state, “but not heavily.”33
In this case, “[a]bsolutely no reason for the delay appears in the record; there is
no indication that either Amos or the State requested a continuance or otherwise
caused the delay.”34 Because the delay is wholly unexplained, this factor weighs
in Amos’s favor, but the advantage that accrues to him is small.35
       The third Barker factor asks whether the defendant “diligently asserted
his speedy trial right.”36             The burden is “on the defendant to alert the
government of his grievances.”37 A “‘defendant’s assertion of his speedy trial
right’ receives ‘strong evidentiary weight,’ while ‘failure to assert the right will
make it difficult for a defendant to prove that he was denied a speedy trial.’”38
This factor can also cut against the defendant where there was a lengthy delay
between his arrest or indictment and his assertion of his speedy-trial right.39
Here, the record reflects that Amos timely asserted his right to a speedy trial.
He initially asserted it on the day he was arrested in Illinois, and he reasserted
it to the Illinois court twice over the next five weeks. After being extradited to
Mississippi, his wife filed a motion that stated,“I, LaMonica Henderson on the




       33
         Goodrum, 547 F.3d at 248 (footnotes and internal citation omitted) (quoting Cowart
v. Hargett, 16 F.3d 642, 647 (1994)).
       34
            Amos, 911 So. 2d at 649.
       35
            See Cowart, 16 F.3d at 647.
       36
            United States v. Parker, 505 F.3d 323, 329 (5th Cir. 2007).
       37
            Robinson, 2 F.3d at 569.
       38
            Molina-Solorio, 577 F.3d at 305 (quoting Barker, 407 U.S. at 531–32).
       39
          Parker, 505 F.3d at 329–30 (“Mere assertion of the speedy trial right is not enough
for this factor to weigh in a defendant’s favor. If he waits too long, his pre-assertion silence
will be weighed against him.”).

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                                         No. 09-60778
behalf of Rommel Amos would like to file a motion for a speedy trial.”40 She filed
this motion just three days after Amos was arrested in Mississippi and less than
two weeks after he was indicted. Amos’s diligent, non-dilatory request for a
speedy trial weighs strongly in his favor.
       The fourth and final Barker factor is the prejudice suffered by the
defendant due to the delay. “[O]rdinarily the burden is on the defendant to
demonstrate actual prejudice. But where the first three factors together weigh
heavily in the defendant’s favor, we may conclude that they warrant a
presumption of prejudice, relieving the defendant of his burden.”41                       Here,
although Amos’s timely assertion of his right to a speedy trial weighs heavily in
his favor, the unexplained reason for the delay and the relatively short length
of the delay both weigh in his favor only slightly. Accordingly, no presumption
of prejudice is warranted.42 Barker thus must demonstrate that he suffered from
actual prejudice. “‘Actual prejudice’ is assessed in light of the three following
interests of the defendant: (1) ‘to prevent oppressive pretrial incarceration’; (2)
‘to minimize anxiety and concern of the accused’; and (3) ‘to limit the possibility
that the defense will be impaired.’”43
       Amos’s only argument as to how he was prejudiced by the delay is that his
ability to put on a defense was impaired by the fact that several witnesses’
memories of the murder had faded . Our review of the trial transcript persuades

       40
        The same day, Amos filed a signed certification stating that he granted Henderson
permission to file motions on his behalf. Amos also signed the motion itself.
       41
            Molina-Solorio, 577 F.3d at 307 (internal citation omitted).
       42
         See Goodrum, 547 F.3d at 260 (determining that no presumption of prejudice was
warranted where two of the first three Barker factors weighed heavily in the defendant’s
favor); Charles, 629 F.3d at 466 (“[D]elays of less than five years are insufficient, by duration
alone, to give rise to a presumption of prejudice and relieve the defendant of satisfying
Barker’s fourth prong.”),
       43
         United States v. Harris, 566 F.3d 422, 433 (5th Cir. 2009), cert. denied, 130 S. Ct.
1687 (2010).

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us that this claim is unfounded. Most of what Amos points to as instances of the
witnesses’ faded memories are, in actuality, nothing more than instances of
different witnesses having different recollections of what happened. Some
witnesses remembered Amos fleeing the scene in his girlfriend’s car; others
testified the car was elsewhere. Amos and Noel testified that Hudson brought
Amos the gun while he was on the ground being attacked; Hudson testified that
Amos came to Hudson’s home and got the gun after the attack concluded. All of
the witnesses had slightly different memories of the precise location where the
shooting took place. The mere fact that various witnesses recounted slightly
different versions of what happened is not evidence that one or more of those
witnesses had forgotten what happened. Such discrepancies are to be expected;
the inevitable need to sort through them is one of the primary reasons for the
jury-trial system. Amos offers neither argument nor evidence that, had the trial
taken place sooner, all of the witnesses would have testified consistently and
that this testimony that would have been more favorable to him.
      In addition, several of what Amos identifies as instances of faded memory
simply do not withstand close scrutiny. For example, Amos contends that
Venable had forgotten whether she told the investigating officers that Vance and
Claiborne had attacked Amos. But Venable testified that she had a clear and
specific recollection that Vance and Claiborne did not assault Amos, that they
pushed and shoved him but did not exchange blows. Amos’s attorney tried to
impeach Venable’s recollection based on the fact that she used the word “fight”
in the statement she gave police the day after the murder, but Venable insisted
that her recollection had not changed and that her statement was consistent
with her testimony. Amos also contends that the three investigating officers
could not recall who collected the shell casings from the scene. But each of the
officers testified specifically as to what role they played in the policing the scene,
and their testimony was consistent.

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                                     No. 09-60778
       The few genuine instances of faded memories that Amos has identified do
not show that he was prejudiced by his delayed trial. “[W]hile ‘faded memory
may result in prejudice, we have held that in order to prejudice the defense to
the extent necessary to constitute a speedy trial violation, the faded memory
must substantially relate to a material fact in issue.’”44 Amos is correct that the
investigating officers were unable to recall precisely how many people were on
the scene when they arrived. And Clairborne could not remember the exact date
on which he gave a statement to the police, exactly how many shots he heard, or
how he disposed of his liquor bottle. But these collateral factual details were not
material to Amos’s theory of self defense. On the core issues, none of the
witnesses were unable to recall what happened or testified that their memories
of the murder had faded. The record does not substantiate Amos’s claim that his
ability to put on a defense was prejudiced by the pretrial delay.
       As a result, fairminded jurists could easily conclude that Amos did not
suffer a violation of his Sixth Amendment right to a speedy trial. It follows that
the Mississippi Supreme Court’s rejection of Amos’s speedy-trial claim was
neither contrary to nor involved an unreasonable application of clearly
established federal law. The district court did not err by dismissing this claim.
                                           III.
       Our disposition of Amos’s speedy-trial claim forecloses relief on his claim
that his lawyer rendered constitutionally ineffective assistance of counsel by
failing to file a motion for a speedy trial. Section 2254(d)(1) requires us to
uphold a state court’s denial of an ineffective-assistance-of-counsel claim so long
as that denial was not an unreasonable application of the two-pronged




      44
       See Jamerson v. Estelle, 666 F.2d 241, 245 (5th Cir. 1982) (quoting United States v.
Edwards, 577 F.2d 883, 889 (5th Cir. 1978)).

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                                         No. 09-60778
deficiency–prejudice standard articulated by Strickland v. Washington.45 “With
respect to prejudice, a challenger must demonstrate ‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’”46 Specifically, where prejudice is alleged to arise from
counsel’s failure to file a motion, the petitioner must show there was a
reasonable probability “that the trial court would have granted it, or would have
reversibly erred by refusing it.”47 If Amos’s speedy-trial claim lacked merit, then
he cannot show that there is a reasonable probability that a motion for a speedy
trial would have been granted if his attorney had filed it. We have already
concluded that it was objectively reasonable for the state court to determine that
Amos’s speedy-trial claim lacked merit.                A fortiori, it was also objectively
reasonable for that court to determine that Amos could not demonstrate that he
was prejudiced by his attorney’s failure to move for a speedy trial.
                                               IV.
       For the reasons discussed above, the district court’s judgment dismissing
Amos’s habeas petition with prejudice is AFFIRMED.




       45
        See Tenny v. Dretke, 416 F.3d 404, 406 (5th Cir. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
       46
            Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 694).
       47
         Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008); see also United States v. Flores-
Ochoa, 139 F.3d 1022, 1024 (5th Cir. 1998) (determining that a defendant cannot show that
he was prejudiced by his counsel’s “failing to move for a continuance” where “there is no
evidence that the court would have granted the motion.”); United States v. Gibson, 55 F.3d
173, 179 5th Cir. 1995) (“Counsel is not required by the Sixth Amendment to file meritless
motions.”).

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