                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 19 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANDREW A. CEJAS,                                 No. 08-16715

              Petitioner - Appellant,            D.C. No. 2:05-cv-02274-GEB-
                                                 GGH
  v.

LOU BLANAS; EDMUND G. BROWN,                     MEMORANDUM *
Jr.,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                           Submitted February 12, 2010 **
                             San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and ZILLY, *** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
      Petitioner Andrew Cejas seeks federal habeas relief under 28 U.S.C. § 2254

on the ground that he was denied his constitutional right to a speedy trial

guaranteed by the Sixth Amendment. The district court denied the petition and we

affirm.

      We review de novo a district court’s decision denying a petition for writ of

habeas corpus. Riggs v. Fairman, 399 F.3d 1179, 1181 (9th Cir. 2005). Habeas

relief may be granted only if we determine that the last reasoned decision at the

state court level was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or the decision “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).

To grant relief, we must conclude that the state court decision was “not only

erroneous, but objectively unreasonable.” Brown v. Ornoski, 503 F.3d 1006, 1010

(9th Cir. 2007) (internal quotations and subsequent citations omitted). To the

extent that a state court decision is unaccompanied by a rationale for its conclusion,

we conduct an independent review of the record to determine whether the state

court decision is objectively unreasonable. Id. at 1010-11. Independent review of

the record is not de novo review of the constitutional issue, but rather the only way




                                          2
a federal court can determine whether a “silent” state court decision is objectively

unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

      Cejas argues that his right to a speedy trial was violated when his trial did

not start for more than three years after his arrest, because the trial court

disregarded statutory safeguards and allowed excessive and unnecessary delays.

On review of a speedy trial claim, we weigh four factors identified by the Supreme

Court in Barker v. Wingo, 407 U.S. 514 (1972): (1) the length of the delay; (2) the

reason for the delay; (3) the defendant’s assertion of his speedy trial right; and (4)

prejudice to the defendant. Barker, 407 U.S. at 530-32. Under the Barker factors,

the state trial court’s decision to deny the motion to dismiss was not objectively

unreasonable.

      The first factor, the length of delay, is a threshold issue, and unless the

length of delay is presumptively prejudicial, we need not review the remaining

factors. See United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). A

delay of three years and two months from arrest to the start of trial is sufficient to

cross that threshold. Courts generally have found that delays approaching one year

are presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n.1

(1992). In analyzing the remaining factors, we conclude that Cejas’s speedy trial

right was not violated.


                                            3
       The majority of the delay in this case is attributable to Cejas, whose counsel

requested continuances amounting to roughly half of the alleged unconstitutional

delay, and consented to every continuance requested by the state and Cejas’s co-

defendant. Cejas was present for nearly every grant of continuance, never once

objected to a continuance before the trial court, and on one occasion expressly

waived statutory rights to both a preliminary hearing within ten days of the entry of

his plea, and to trial within sixty days. “[D]elay attributable to the defendant’s own

acts or to tactical decisions by defense counsel will not bolster defendant’s speedy

trial argument,” McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003), because

“[t]he Speedy Trial Clause primarily protects those who assert their rights, not

those who acquiesce in the delay.” United States v. Aguirre, 994 F.2d 1454, 1457

(9th Cir. 1993). The delay attributable to the government does not tip this factor in

Cejas’s favor.

      Cejas argues that his counsel’s actions cannot be held to waive his right to a

speedy trial, and that the trial court should have requested his express permission

for every continuance, but the Supreme Court has held that an attorney may waive

his client’s speedy trial right without express permission because “[s]cheduling

matters are plainly among those for which agreement by counsel generally

controls,” and “[r]equiring express assent from the defendant himself for such


                                          4
routine and often repetitive scheduling determinations would consume time to no

apparent purpose.” New York v. Hill, 528 U.S. 110, 114-15 (2000). While Cejas

disagreed with his attorney about whether to pursue a motion to dismiss premised

on a speedy trial violation and how much time was needed to prepare for his trial,

he never alerted the state trial court to the disagreement, waited fifteen months

after his arrest to reserve the right to pursue the motion to dismiss and another 566

days to file the motion, while expressly consenting to one continuance and

acquiescing to the remainder. Cejas’s conduct weighs against determining his

speedy trial right was violated.

      As to the prejudice factor, the trial judge concluded there was no prejudice

because Cejas had been represented by counsel at every step in the trial and Cejas

fails to raise any established Supreme Court precedent that makes this

determination objectively unreasonable. We conclude that this factor also weighs

against finding a violation of the right to a speedy trial. In sum, the decision of the

state court was neither contrary to nor based on an unreasonable application of

established federal law and the findings made by the state court are not

unreasonable.

      Cejas briefed uncertified claims that the state trial court’s misapplication of

speedy trial provisions in the California Penal Code violated his due process and


                                           5
speedy trial rights, and amounted to structural error. We do not consider these

challenges to the implementation of the state statutory provisions because “it is not

the province of a federal habeas court to reexamine state-court determinations on

state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

AFFIRMED.




                                          6
