                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            MAR 4 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER J. SPREITZ,                          No. 09-99006

              Petitioner - Appellant,            D.C. No. 4:02-CV-00121-JMR

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, District Judge, Presiding

                              Argued July 11, 2013
                             Submitted March 4 , 2019
                             San Francisco, California

Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.

       In 1994, Christopher Spreitz was convicted by an Arizona jury of first-

degree murder and sentenced to death by a judge. He appeals the district court’s

denial of his petition for a writ of habeas corpus challenging his conviction and

sentence. We hold that the Arizona Supreme Court did not unreasonably apply


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Barker v. Wingo, 407 U.S. 514 (1972), by concluding that Spreitz was not denied

his Sixth Amendment right to a speedy trial. We hold further that the Arizona

post-conviction relief (“PCR”) court did not unreasonably apply Strickland v.

Washington, 466 U.S. 668 (1984), by concluding that Spreitz’s trial attorneys were

not ineffective for failing to preserve Spreitz’s right to a speedy trial. Therefore,

we affirm the district court’s denial of Spreitz’s petition for a writ of habeas corpus

as to his conviction.1

      1. Spreitz argues that he was denied his Sixth Amendment right to a speedy

trial because it took more than five years from the time of his arrest for the State to

bring him to trial. Spreitz raised this argument on direct appeal to the Arizona

Supreme Court, and that court denied his claim on the merits. State v. Spreitz, 945

P.2d 1260, 1270–71 (Ariz. 1997) (Spreitz I). The Spreitz I court correctly

identified Barker v. Wingo as the governing United States Supreme Court

precedent, and its application of Barker’s four-factor test was not unreasonable.

See Spreitz I, 945 P.2d at 1270 (explaining that “[t]he four-factor Barker analysis



      1
         In an opinion filed concurrently with this Memorandum, we reverse the
district court’s denial of Spreitz’s petition for a writ of habeas corpus with respect
to his sentence. Therefore, we do not reach Spreitz’s other certified and uncertified
claims, except that we decline to grant a certificate of appealability as to Spreitz’s
claim that he is entitled to an evidentiary hearing in the district court—that claim is
foreclosed by Cullen v. Pinholster, 563 U.S. 170 (2011).

                                          -2-
examines (1) the length of the delay; (2) the reason for the delay; (3) whether the

defendant has demanded a speedy trial; and (4) the prejudice to the defendant”

(internal quotation marks omitted)).

      The Spreitz I court held that “[a] pretrial period after arraignment of over

five years is presumptively prejudicial.” Id. at 1271. The court then determined

that each of the other three factors weighed against Spreitz: (2) the delay was

caused by Spreitz’s attempts to exclude DNA evidence; (3) Spreitz did not assert

his right to a speedy trial until the eleventh hour—he “did not move to dismiss for

violation of speedy trial rights until after the DNA evidentiary hearing process had

run its three-year course, . . . [nor did he] complain of any violation of speedy trial

rights until twelve days before trial, and the next day he moved to continue the trial

because of defense counsel’s scheduling conflict”; and (4) Spreitz claimed “no

prejudice from the trial delay other than that arising out of his long period of

custody . . . . [Thus, the court found] that the delay did not prejudice his ability to

defend against the state’s claims.” Id.

      Spreitz challenges the court’s findings as to the second, third, and fourth

Barker factors. He raises two primary arguments: that the delay was the State’s




                                           -3-
fault, and that he was prejudiced because he could not call Donald Alden (a

paraplegic for whom he was a nurse) as a mitigation witness.2

      Spreitz argues that the State is responsible for the delay, primarily between

December 1989 and March 1990, because the State was unprepared to present its

DNA evidence. Spreitz was arrested on May 25, 1989, and his trial began on

August 9, 1994. Spreitz I, 945 P.2d at 1265–66. Spreitz waived his statutory

speedy trial rights for various reasons through April 1991. See id. Even if the

State were responsible for a four-month delay at the outset of the pretrial period,3

the remaining years of delay cannot be attributed to an initial delay in the State’s

DNA testing process. Rather, the crux of Spreitz’s argument is that the State is

responsible for the delay because the State’s desire to introduce DNA evidence

required extensive pretrial litigation. According to Spreitz, he was merely

opposing the State’s trial strategy. Thus, he claims, the State is still at fault




      2
        As to the third Barker factor, Spreitz also argues that he did not “waive”
his right to a speedy trial Although the Spreitz I court noted that his “assertion of
rights was . . . untimely and bears little weight in our Barker analysis,” Spreitz I,
945 P.2d at 1271, this finding was reasonable and did not imply that Spreitz had
“waived” his rights.
      3
       Given that Spreitz expressly waived his speedy trial rights through April
1991, Spreitz I, 945 P.2d at 1270, any delay attributable to the State during that
time would be entitled to little weight.

                                           -4-
because the State was the initial but-for cause of the delay. In other words,

Spreitz’s actions merely flowed from the State’s.

      Spreitz offers no compelling authority for his argument that the delay caused

by the pretrial battle over DNA evidence should be attributed to the State.

Although a court could conceivably fault the State for attempting to introduce

unnecessary evidence that was likely to occasion delay, there was no finding that

the DNA evidence was unnecessary. In fact, the state trial court ultimately held

that the evidence was admissible, though Spreitz then succeeded in excluding it as

a discovery sanction. Moreover, DNA evidence may have been relevant to

identifying the blood in the trunk, an issue that Spreitz continued to dispute at

sentencing. Thus, it was not unreasonable for the Spreitz I court to weigh the delay

against Spreitz, who sought to benefit from opposing the State’s introduction of

DNA evidence. See United States v. Tanh Huu Lam, 251 F.3d 852, 858 as

amended on denial of reh’g and reh’g en banc, 262 F.3d 1033 (9th Cir. 2001).

      As to the prejudice factor, Spreitz cannot demonstrate that he suffered any

substantial prejudice from the delay that would render the Spreitz I court’s

conclusion unreasonable. Spreitz is entitled to a baseline presumption that he was

prejudiced by the five-year delay. See Doggett v. United States, 505 U.S. 647,

655–56 (1992). And Spreitz may have suffered some degree of “obvious”


                                          -5-
prejudice when Donald Alden died before sentencing and therefore could not

testify in mitigation. Barker, 407 U.S. at 532. However, this prejudice is not

sufficient to render the Spreitz I court’s application of Barker unreasonable.

      As the State points out, Spreitz’s role as a nurse to Alden, a paraplegic, was

presented to the sentencing judge through various other witnesses. Moreover, it is

unlikely that Alden would have been called as a mitigation witness because his

interview notes reveal that he had a mixed view of Spreitz and nothing specifically

positive to say. Indeed, the only evidence submitted in state court regarding

Donald Alden, indicates at most that Spreitz initially made a good impression and

that the two remained friends even after Alden had terminated Spreitz for his poor

performance. It also indicates, contrary to Spreitz’s mitigation presentation, that

Spreitz bragged about fights he would allegedly get into.

      In sum, the alleged prejudice Spreitz suffered is insufficient to overcome the

Spreitz I court’s finding that Spreitz caused the delay, and the fact that Spreitz

failed to assert his right to a speedy trial until days before trial. As in Barker,

Spreitz “did not want a speedy trial.” 407 U.S. at 534 (finding this factor “more

important than the absence of serious prejudice”). Just as Barker hoped to benefit

from court proceedings concerning a possible witness against him, id., Spreitz

hoped that he would benefit from the exclusion of DNA evidence. And as with


                                           -6-
Barker, Spreitz only asserted his speedy trial rights after those proceedings had run

their course.

      We therefore conclude that the Arizona Supreme Court did not unreasonably

apply Barker v. Wingo.

      2. Spreitz next argues that his trial attorneys (William Lane and Marshall

Tandy)4 were ineffective for failing to preserve his right to a speedy trial. Beyond

the prejudice related to Donald Alden’s death, Spreitz fails to identify how he was

prejudiced by his attorneys’ decision to contest the DNA evidence and continue the

trial date for several years. The state PCR court rejected this claim on the merits.5

      Regardless of whether Lane or Tandy were deficient by failing to preserve

Spreitz’s speedy trial rights, Spreitz cannot show that he was prejudiced under

Strickland. Spreitz does not—and could not—argue that he was prejudiced at the

guilt phase of the trial. Therefore, as to the guilt phase, we conclude that the PCR


      4
        Spreitz barely mentions his third trial attorney, Josephine Sotelo, who also
represented him for the purpose of challenging the DNA evidence. Spreitz does
not discuss any contact he had with Sotelo throughout the relevant time period,
although Sotelo was presumably responsible for the bulk of the litigation at that
time.
      5
       The PCR court initially found this ineffective assistance of counsel claim
waived, but nonetheless addressed it on the merits. The Arizona Supreme Court,
however, reversed the PCR court’s ruling that various ineffective assistance of
counsel claims had been waived, but affirmed the merits rulings. State v. Spreitz,
39 P.3d 525, 527 (Ariz. 2002) (Spreitz II). Here, we review the merits ruling.

                                          -7-
court did not unreasonably apply Strickland in rejecting Spreitz’s claim that his

trial attorneys were ineffective for failing to preserve his right to a speedy trial.6

      For the above reasons, we affirm the district court’s denial of Spreitz’s

petition for a writ of habeas corpus as to his conviction.

      AFFIRMED in part.




      6
         As noted supra at n. 1, we need not address any of Spreitz’s claims related
to the sentencing phase of his trial aside from those we address in our published
opinion.

                                           -8-
