                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 13, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 RITA ANN HUMPHREY,

          Petitioner-Appellant,

 v.

 DAN SHANNON, Warden, Wyoming                           No. 11-8003
 Department of Corrections Women’s             (D.C. No. 2:09-CV-00215-CAB)
 Center; BRUCE SALZBURG,                                  (D. Wyo.)
 Attorney General, State of Wyoming,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.


      In 1980, Rita Ann Humphrey was indicted for murdering her husband.

Later that year, a Wyoming state court found the charge lacked probable cause

and dismissed the case. Then, in 2004, Ms. Humphrey was charged for the crime

once again. This time the case went to trial where she was convicted and

sentenced to 25 years in prison. Ms. Humphrey appealed but the Wyoming

Supreme Court ultimately affirmed her conviction. Humphrey v. State, 185 P.3d


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1236, 1252 (Wyo. 2008). After that, Ms. Humphrey turned her attention to

federal court, filing a motion for relief under 28 U.S.C. § 2254. The district

court, however, rejected the motion and denied her application for a certificate of

appealability (“COA”). So it is that Ms. Humphrey now appears before us to

renew her request for a COA.

      We may, of course, grant a COA only if Ms. Humphrey makes a

“substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), such that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Miller–El v.

Cockrell, 537 U.S. 322, 338 (2003) (internal quotation omitted). And, where a

claim “was adjudicated on the merits in State court proceedings,” we may grant

habeas relief only if the state court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

      Before us, as before the district court, Ms. Humphrey seeks a COA to

pursue two arguments. First, she argues that the government violated her Sixth

Amendment right to a speedy trial by allowing 561 days to elapse between

charging her and bringing her to trial. Second, she argues that the 24 years




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between the first and second times she was charged substantially prejudiced her

defense and so violated the due process clause of the Fourteenth Amendment.

      The Wyoming Supreme Court discussed and rejected both of these

arguments in Ms. Humphrey’s direct appeal. As for the first, it applied the four

factor balancing test announced in Barker v. Wingo, 407 U.S. 514 (1972), and

held that Ms. Humphrey’s speedy trial claim failed for lack of prejudice. All of

the supposed setbacks to her defense, the Court noted, were due to the 24 years

that elapsed between prosecutions, not to the 561 days between charging and trial.

And, of course, the speedy trial guarantee only applies while charges are pending,

not during intervening periods of time when charges have been dismissed. See

Humphrey, 185 P.3d at 1246, citing United States v. MacDonald, 456 U.S. 1, 8-9

(1982). As for the second, the Court held that a pre-charging delay may

constitute a due process violation only if the defendant shows that the prosecutor

intentionally stalled to gain a tactical advantage or due to some other improper

motive. See Humphrey, 185 P.3d at 1247, citing United States v. Marion, 404

U.S. 307, 323-26 (1971). And, the Court noted, Ms. Humphrey had failed to

bring any evidence to this effect.

      Our review of the record suggests no basis on which we might hold the

Wyoming Supreme Court’s resolution of Ms. Humphrey’s arguments runs afoul of

§ 2254(d). The Court’s decisions are not contrary to or an unreasonable

application of federal law. Neither do they rest on an unreasonable determination

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of the facts. The request for a COA is therefore denied and this appeal is

dismissed.

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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