                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               APR 20 2016

                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL MANN                                      No. 15-55147

              Petitioner - Appellant,             D.C. No. 8:13-cv-0560 DOC-
                                                  (MAN)
  v.

JEFFREY BEARD, et al.,                            MEMORANDUM*

              Respondents - Appellees.


                    Appeal from the United States District Court
                  for the Central District of California, Santa Ana
                     David O. Carter, District Judge, Presiding

                        Argued and submitted April 5, 2016
                              Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,** District Judge.

       Michael Mann (“Appellant”) appeals the district court’s denial of his

petition for a writ of habeas corpus for an alleged violation of his Sixth

Amendment right to a speedy trial. The alleged violation arises out of a state court



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
conviction in May 2008 for an arrest that occurred in December 2001. We have

jurisdiction under 28 U.S.C. § 2253. We affirm.

      Appellant contends that his Sixth Amendment right to a speedy trial attached

upon his initial state arrest for assault of a police officer and possession of a

controlled substance, because he was held in state custody after arrest until his

arraignment at an initial hearing two days later, when he was released on bond and

ordered to return to court for a preliminary hearing. See United States v. Marion,

404 U.S. 307, 320 (1971) (holding that the protections of the Sixth Amendment

speedy trial provision attach upon “the actual restraints imposed by arrest and

holding to answer a criminal charge”). However, between Appellant’s arrest and

preliminary hearing in state court, federal authorities arrested and held him on

separate drug charges. Appellant missed his preliminary state court hearing

because he was in federal custody, and the state court exonerated his bond, but

issued a warrant for his failure to appear.

      The Supreme Court holds that “when no indictment [or information] is

outstanding, only the ‘actual restraints imposed by arrest and holding to answer a

criminal charge . . . engage the protections of the speedy trial provision of the Sixth

Amendment.’” United States v. Loud Hawk, 474 U.S. 302, 311 (1986) (ellipsis in

original) (quoting Marion, 404 U.S. at 320). When the actual restraints are


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removed and “defendants are not incarcerated or subjected to other substantial

restrictions on their liberty, a court should not weigh that time towards a claim

under the Speedy Trial Clause.” Id. at 312. In this case, Appellant was neither

under indictment nor subject to bail during the relevant time period from February

2002 until February 2008. In light of these facts, it was neither contrary to clearly

established Supreme Court precedent nor an unreasonable application of such law

for the California Court of Appeal to hold that Appellant’s federal speedy trial

right was not violated.

      Appellant next contends that, despite the exoneration of the bond, California

retained its hold on him because it issued an arrest warrant for his failure to appear

at his 2002 preliminary hearing. As the district court noted, Appellant’s liberty

was not restrained by the state after the bond’s exoneration and issuance of the

arrest warrant, but by another sovereign (the federal government) during the

relevant time period. Additionally, due to Appellant’s federal custody, the failure-

to-appear warrant arguably did not subject Appellant to the same degree of loss of

employment or damage to reputation as compared to a person not in custody.

Given these circumstances, “fairminded jurists could disagree” whether the

issuance of a failure-to-appear warrant constituted the actual restraint necessary to

keep a defendant’s Sixth Amendment right to a speedy trial attached. See


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Harrington v. Richter, 562 U.S. 86, 101 (2011) (federal habeas relief is precluded

“so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision”).

      Finally, Appellant asserts that the California Court of Appeal erred in

holding that the December 2001 felony complaint filed against him did not trigger

the protections of the speedy trial right under the Sixth Amendment. The Supreme

Court has not decided whether the filing of a felony complaint is sufficiently

analogous to an indictment or information to trigger the protections of the Sixth

Amendment Speedy Trial Clause. Indeed, this circuit is split on whether the filing

of a felony complaint triggers the right. Compare Northern v. United States, 455

F.2d 427, 429 (9th Cir. 1972) (per curiam) (felony complaint triggers speedy trial

protection), and United States v. Terrack, 515 F.2d 558, 559 (9th Cir. 1975)

(same), with Favors v. Eyman, 466 F.2d 1325, 1327!28 (9th Cir. 1972) (felony

complaint does not trigger speedy trial right), and Arnold v. McCarthy, 566 F.2d

1325, 1382 (9th Cir. 1978) (same).

       Because the Supreme Court has not addressed the question whether a felony

complaint causes the Sixth Amendment Speedy Trial Clause to attach, the

California Court of Appeal’s holding was not contrary to clearly established

federal law. Further, the state court holding was not an unreasonable application of


                                      Page 4 of 5
federal law. Indeed, in light of this circuit’s own split, fairminded jurists could

disagree whether the Orange County District Attorney’s filing of a felony

complaint against Appellant triggered the protections of the Sixth Amendment.

Given the heightened standard of review required by 28 U.S.C. § 2254, we must

defer to the California Court of Appeal’s conclusion that the felony complaint did

not cause Appellant’s Sixth Amendment s5peedy trial right to attach.

      AFFIRMED.




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