     Case: 11-20796       Document: 00512310013         Page: 1     Date Filed: 07/16/2013




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

                                                                            FILED
                                                                            July 16, 2013

                                       No. 11-20796                        Lyle W. Cayce
                                                                                Clerk

RANDELL GLEN LAWS,

                                                  Petitioner–Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,


                                                  Respondent–Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 4:07-CV-4472


Before SMITH, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Randell Glen Laws appeals from the district court’s denial of his
federal habeas petition. Because Laws fails to show that he was denied his
constitutional right to a speedy trial or that the state courts unreasonably
rejected his ineffective assistance of appellate counsel claim, we AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20796

                      I. Facts and Procedural History
      Fifteen years after Lyle Sacry’s death, a cold-case investigation implicated
Laws and two of his former relatives. The three were charged with murder and
arrested. Laws’s former relatives challenged extradition from West Virginia, but
Laws waived extradition from Florida. The day after Laws returned to Texas,
the state court appointed Randall Ayers as trial counsel.
      Nearly twenty-three months passed before Laws stood trial. The State
initially waited for the putative co-defendants’ extradition, but it ultimately
decided against trying them with Laws and declined to present their testimony.
The State also moved for numerous continuances. Laws acquiesced to almost all
of them, but he objected on a few instances. He twice moved for a speedy trial
and on one occasion wrote to the state trial judge to complain about the delay.
      Even so, Laws showed some ambivalence about the lengthy pretrial
process. He filed a wide-ranging motion for discovery on the same day he filed
his first motion for a speedy trial. He twice moved for additional investigative
resources—the second time sixteen months after his arrest.
      A jury eventually convicted Laws of murder, and he was sentenced to
ninety-nine years in prison. Represented by Layton Duer on appeal, Laws
contended that insufficient evidence supported the verdict. The intermediate
appellate court affirmed Laws’s conviction, and the Court of Criminal Appeals
refused his petition for review. See Laws v. State, No. 01-04-847-CR, 2006 WL
241313 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (unpublished).
      Laws timely filed for state habeas relief pro se, asserting in relevant part
that the State violated his state and federal speedy-trial rights and that Ayers
and Duer rendered ineffective assistance. Laws alleged that Ayers failed to
aggressively assert his speedy-trial rights and that Duer failed to brief a speedy-
trial claim on direct appeal. The state trial court procedurally barred Laws’s
speedy-trial claim, ruling that such claims were not cognizable in Texas habeas

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                                  No. 11-20796

proceedings, and determined that Laws received sufficient representation and
suffered no prejudice. The Court of Criminal Appeals denied habeas relief on the
trial court’s findings without holding a hearing or issuing an order providing
reasons.
      Laws then filed for federal habeas relief, raising essentially the same
issues he had presented in state court. The State moved for summary judgment,
but conceded at a hearing that Laws did not procedurally default his Sixth
Amendment speedy-trial claim. The magistrate judge concluded that the State
violated Laws’s speedy-trial rights and that Duer was constitutionally ineffective
on direct appeal. He recommended granting habeas relief, and Laws moved for
release from confinement.
      The district court withdrew the reference and denied habeas relief.
Applying de novo review to Laws’s speedy-trial claim, the district court
determined that the claim failed on its merits and, alternatively, that it was
procedurally barred. Analyzing Laws’s ineffective-assistance claim under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the court
ruled that Duer had no obligation to raise every nonfrivolous issue on appeal and
that, regardless, Laws suffered no prejudice because the underlying speedy-trial
claim lacked merit.
      Laws moved for a Certificate of Appealability (“COA”), which the district
court denied. This court granted a COA on “(1) whether Laws was denied his
constitutional right to speedy trial; and (2) whether Laws was denied his
constitutional right to the effective assistance of counsel because counsel did not
raise the speedy trial issue on direct appeal.” Laws v. Thaler, No. 11-20796, slip
op. at 2 (5th Cir. Aug. 8, 2012). We consider these issues in turn.




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                                        No. 11-20796

                                II. Speedy-Trial Claim1
       In line with the district court’s ruling, the State insists that Laws’s speedy-
trial claim is procedurally barred. A state procedural default, however, does not
always preclude our review. We may reach the merits of potentially defaulted
claims—and even apply de novo review—when doing so would result in the
denial of habeas relief. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2265 (2010)
(“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de
novo review when it is unclear whether AEDPA deference applies, because a
habeas petitioner will not be entitled to a writ of habeas corpus if his or her
claim is rejected on de novo review, see § 2254(a).”); Roberts v. Thaler, 681 F.3d
597, 605 (5th Cir.), cert. denied, 133 S. Ct. 529 (2012) (“While our normal
procedure is to consider issues of procedural default first, we may nonetheless
opt to examine the merits first, especially when procedural default turns on
difficult questions of state law.”). Because Laws’s speedy-trial claim fails under
de novo review, we do not consider whether the district court properly reimposed
the procedural bar despite the State’s concession that it did not apply.2


       1
         We confine our review of this claim to the state court record. Although Laws’s speedy-
trial claim was not adjudicated on the merits in state court, “§ 2254(e)(2) still restricts the
discretion of federal habeas courts to consider new evidence.” Cullen v. Pinholster, 131 S. Ct.
1388, 1401 (2011). We may consider only new facts “that could not have been previously
discovered through the exercise of due diligence” and that “would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(A)(ii),
(e)(2)(B). Because Laws provides no real explanation for why he could not have obtained
affidavits from his mother, Ayers, and himself during state habeas proceedings, § 2254(e)(2)
prevents us from considering the affidavits submitted in the district court. See Williams v.
Taylor, 529 U.S. 420, 435 (2000); Conner v. Quarterman, 477 F.3d 287, 293 (5th Cir. 2007).
       2
         We note, however, that Texas law permits defendants to raise Sixth Amendment
speedy-trial claims both on direct appeal and in post-conviction proceedings. See, e.g., Ex parte
Irvan, No. WR-75428-01, 2011 WL 2378184, at *1 (Tex. Crim. App. 2011) (unpublished) (noting
that Texas law bars state law speedy-trial claims from collateral proceedings, but that “the
right to a speedy trial under the federal constitution[] is cognizable”); Ex parte Graves, 70
S.W.3d 103, 109 (Tex. Crim. App. 2002) (“[B]oth federal and Texas courts have confined the
scope of post-conviction writs of habeas corpus to jurisdictional or fundamental defects and

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                                       No. 11-20796

       The Sixth Amendment provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial[.]” Because it is
difficult to pinpoint when a delay becomes unconstitutionally long, the Supreme
Court has rejected a bright-line approach. “It is . . . impossible to determine with
precision when” a specific delay crosses the line. Barker v. Wingo, 407 U.S. 514,
521 (1972). Thus, “‘[t]he right of a speedy trial is necessarily relative,’” and
courts must apply “a functional analysis of the right in the particular context of
the case[.]” Id. at 522 (citation omitted). That analysis consists of “four separate
enquiries: [1] whether delay before trial was uncommonly long, [2] whether the
government or the criminal defendant is more to blame for that delay, [3]
whether, in due course, the defendant asserted his right to a speedy trial, and
[4] whether he suffered prejudice as the delay’s result.” Doggett v. United States,
505 U.S. 647, 651 (1992) (citing Barker, 407 U.S. at 530).
       Considering the first factor, the nearly 23-month delay between Laws’s
arrest and trial weighs, at most, only slightly in his favor.                  See Amos v.
Thornton, 646 F.3d 199, 206–07 (5th Cir. 2011) (reasoning that a delay of less
than thirty months precludes the first Barker factor from “strongly favor[ing] the
accused”); Goodrum v. Quarterman, 547 F.3d 249, 260 (5th Cir. 2008) (noting
that a presumption of prejudice from delay alone “applies only where the delay
is at least [five] years”). Because this “first factor serves a dual function” as both
a substantive Barker factor and “a threshold requirement,” we need not analyze
the remaining factors unless the case involves a delay of over twelve months.
See United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003). As the delay
here exceeds the 12-month trigger, we move on to the second factor.3


constitutional claims. Violations of statutes, rules, or other non-constitutional doctrines are
not recognized.” (emphasis added) (footnote omitted) (collecting cases)).
       3
        We note that much of the delay should not count towards the speedy-trial “clock.”
About eleven months were spent waiting for the extradition of potential co-defendants. See

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                                       No. 11-20796

       The second Barker factor—which party is more responsible for the
delay—primarily concerns the justification for the delay. “[D]ifferent weights
should be assigned to different reasons.” Barker, 407 U.S. at 531. Delays
engineered “to hamper the defense” are “weighted heavily against the
government.” Id. Those caused by “negligence or overcrowded courts,” however,
are weighted “less heavily.” Id. Some reasons, “such as a missing witness,
should serve to justify appropriate delay” and will not count against the
government. Id.
       Laws admits that the State did not intend to prejudice his defense through
the delays and that some delay was caused by the extradition challenges. That
said, the State moved for virtually all of the continuances, and it concedes that
one delay was caused by the trial court and at least another by the prosecutor.
Even if these delays slightly weigh against the State, however, Laws agreed to
the vast majority of resets.4 At most, then, the second factor is neutral. See
Schreane, 331 F.3d at 554 (concluding that the second Barker factor favored “no
one” when delay could be blamed on both parties).
       Turning to the third factor, the “failure to assert the right will make it
difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407
U.S. at 532. But not every invocation of the right will do. Defendants must



United States v. Parker, 505 F.3d 323, 327 (5th Cir. 2007) (noting, in the Speedy Trial Act
context, that the “speedy trial clock” begins to run once all co-defendants have appeared in
court); United States v. Hernandez, 457 F.3d 416, 421 (5th Cir. 2006) (“doubt[ing]” that delay
incurred due to the Government waiting on a witness “amounted even to official negligence,”
even though the witness ultimately did not testify). Some of the delays, moreover, were
attributable to Laws’s requests for discovery and investigative resources. See Nelson v.
Hargett, 989 F.2d 847, 852 (5th Cir. 1993) (“The speedy trial clock is properly tolled in cases
where responsibility for the delay lies with the defendant rather than the state.”). Although
we decline to subtract months from the speedy-trial clock to pretermit a full Barker inquiry,
the delay for speedy-trial purposes likely weighs even less in Laws’s favor.
       4
         When Laws opposed resets, he did so in close proximity to requests for more
investigation and discovery, suggesting that he could benefit from additional time.

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                                     No. 11-20796

“appropriately assert[]” their speedy-trial rights, as viewed in “light of [their]
other conduct.” United States v. Loud Hawk, 474 U.S. 302, 314 (1986). Thus,
it is possible for a defendant to insufficiently assert his speedy-trial rights
despite “repeatedly mov[ing] for dismissal on speedy trial grounds.” Id.
       That is what occurred here. Laws’s first motion for a speedy trial—filed
over eight months after his arrest—only generically alleged that the delay had
“prejudiced and harmed” him. The motion also insufficiently asserted the right
in light of Laws’s other conduct. He concurrently signed an “Agreed Setting”
form and took other actions suggesting that he was not, in fact, ready for trial.
See Millard v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987) (explaining why a
petitioner’s speedy-trial motions were not “a sincere effort to obtain a speedy
trial”). Laws’s second speedy-trial motion demanded only his release and the
indictment’s dismissal, an improper assertion of speedy-trial rights. See, e.g.,
Barker, 407 U.S. at 534–35; United States v. Frye (Frye II), 489 F.3d 201, 212
(5th Cir. 2007) (“A motion for dismissal is not evidence that the defendant wants
to be tried promptly.”). Throughout the pretrial proceedings, moreover, Laws
signed numerous “Agreed Setting” forms without objection.5 Because Laws
insufficiently and inconsistently asserted his speedy-trial rights, the third
Barker factor supports the State. See Goodrum, 547 F.3d at 259 (observing that
this factor hinges on the “frequency and forcefulness” of the “defendant’s
invocation”); Parker, 505 F.3d at 329–30.
       Because the first three factors do not heavily support Laws, he must prove
that he suffered actual prejudice to prevail on the fourth Barker factor. See
Goodrum, 547 F.3d at 260–61; Frye II, 489 F.3d at 212. In analyzing prejudice,


       5
         Between October 15, 2002, and May 25, 2004, Laws signed ten “Agreed Setting” forms
without any record objection. He objected to a reset only twice, and even then did so
insufficiently. On May 27, 2003, Laws simultaneously signed an “Agreed Setting” form and
moved for a speedy trial and discovery. On November 11, 2003, he objected to a continuance
on an “Agreed Setting” form, only to later move for additional investigative resources.

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                                       No. 11-20796

we look to three “interests” that the speedy-trial right “was designed to protect”:
“(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. “[T]he most serious [concern] is the last,
because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system.” Id. Laws concedes that the delay did not impair
his defense. Thus, his speedy-trial claim rests entirely on showing that he
suffered oppressive pretrial incarceration or anxiety.
       Laws does not satisfy that difficult burden. We recognize that a pretrial
diagnosis of cancer undeniably caused Laws anxiety, though we note that he
received treatment and would have endured that anxiety outside prison. See
Frye II, 489 F.3d at 213 (citing Gray v. King, 724 F.2d 1199, 1204 (5th Cir.
1984)). The Supreme Court has suggested that living “under a cloud of suspicion
and anxiety” for four years constitutes only “minimal” prejudice absent an effect
on a defendant’s trial. Barker, 407 U.S. at 534. As mentioned above, Laws
concedes that he has failed to demonstrate trial-related prejudice.6
       Balancing the Barker factors, we conclude that Laws’s speedy-trial claim
lacks merit. The delay here was not unusually long,7 and a good portion of it was


       6
         Laws’s cold-case murder conviction also is “serious” enough to mitigate a showing of
non-trial prejudice. See Barker, 407 U.S. at 531; United States v. Bishop, 629 F.3d 462, 466
(5th Cir. 2010) (noting that a case’s complexity concerns the prejudice factor).
       7
         See Loud Hawk, 474 U.S. at 304–05 (denying speedy-trial relief; 90-month delay);
Barker, 407 U.S. at 534, 536 (same, four-year delay); Amos, 646 F.3d at 203, 209 (same; state
court “could easily conclude” 16-month delay did not violate speedy-trial rights); Bishop, 629
F.3d at 467–68 (same, at least 22-months delay post-indictment); United States v. Harris, 566
F.3d 422, 428, 433 (5th Cir. 2009) (same; three-year delay); Goodrum, 547 F.3d at 260, 266
(same, 30-month delay); Parker, 505 F.3d 328, 330 (same, 17-month delay); Frye II, 489 F.3d
at 210, 213 (same, 47-month delay); United States v. Robinson, 455 F.3d 602, 607–09 (6th Cir.
2006) (same, 29-month delay); United States v. Serna-Villareal, 352 F.3d 225, 232–33 (5th Cir.
2003) (same; 45-month delay); Millard, 810 F.2d at 1406–07 (same, 18-month delay); cf.
Doggett, 505 U.S. 650, 658 (granting speedy-trial relief; 8.5-year delay); United States v.
Molina-Solorio, 577 F.3d 300, 304, 308 (5th Cir. 2009) (same, almost a 10-year delay).

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                                         No. 11-20796

justified or attributable to Laws. Laws inconsistently and insufficiently asserted
his speedy-trial rights and fails to show particularized prejudice sufficient to
overcome the first three Barker factors. See Robinson, 455 F.3d at 608 (“In the
absence of particularized trial prejudice, delay attributable to the government’s
negligence ‘has typically been shockingly long’ to warrant a finding of prejudice.”
(quoting Schreane, 331 F.3d at 559)).
                          III. Ineffective Assistance Claim8
       Because Laws’s speedy-trial claim lacks merit, his ineffective assistance
claim necessarily fails.         To succeed on an ineffective assistance claim, a
defendant must show that counsel was objectively deficient and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Laws could not have suffered prejudice from Duer’s failure
to brief a nonmeritorious issue. See Smith v. Robbins, 528 U.S. 259, 285 (2000)
(To show prejudice, a defendant “must show a reasonable probability that, but
for his counsel’s unreasonable failure to file a merits brief, he would have
prevailed on his appeal.”).9
       Even if Laws’s speedy-trial claim had more force, the state court
nonetheless could have reasonably concluded that briefing it would not have had
a substantial probability of altering the outcome on direct appeal.                            See



       8
         Because the state courts adjudicated this claim on the merits, Pinholster mandates
that we look only to the state court record, rendering Laws’s affidavit evidence immaterial to
our analysis. See 131 S. Ct. at 1400 (“If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.”). Relying on Smith v. Cain, 708 F.3d 628, 631 (5th Cir.
2013), Laws argues that this record limitation does not bar consideration of his affidavits
because the magistrate judge concluded that the state courts unreasonably applied clearly
established federal law and granted him an evidentiary hearing. But as the district court
never adopted the magistrate judge’s conclusions, Pinholster—not Smith—applies here.
       9
          See Robbins, 528 U.S. at 286 n.14 (“The performance component need not be
addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.’” (quoting Strickland, 466 U.S. at 697)).

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                                       No. 11-20796

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“Under § 2254(d), a habeas
court must determine what arguments or theories supported or, as here, could
have supported, the state court’s decision[.]”). That conclusion is especially
appropriate because the state court adjudicated Laws’s ineffective-assistance
claim on the merits, requiring us to review it under the doubly deferential
standards of both Strickland and AEDPA. In such cases, the “pivotal question”
is not “whether defense counsel’s performance fell below Strickland’s standard,”
it is “whether the state court’s application of the Strickland standard was
unreasonable.” Id. at 785. Because it was not, we must reject Laws’s ineffective
assistance claim.
                                       Conclusion
       Laws’s speedy-trial claim fails.           He therefore could not have been
prejudiced by appellate counsel’s decision to omit that claim on direct appeal.
Accordingly, we AFFIRM the district court’s denial of habeas relief.10




       10
          This case does not involve the situation presented in Trevino v. Thaler, 133 S. Ct.
1911 (2013), because, unlike that case, the ineffective assistance of counsel claim was raised
in the state habeas proceeding and, therefore, was not asserted to be procedurally defaulted
in federal court.

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