                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 28 2011

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




                            FOR THE NINTH CIRCUIT

KEITH DOYLE,                                    No. 10-35330

              Petitioner - Appellant,           D.C. No. 2:09-cv-00058-RFC-CSO

  v.
                                                MEMORANDUM *
SAM LAW, Warden at Crossroads
Correctional Facility; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2011
                              Seattle, Washington

Before: GUY, * McKEOWN, and TALLMAN, Circuit Judges.*

       Petitioner Keith E. Doyle, a Montana prisoner, appeals from the denial of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
               The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
habeas relief with respect to his claim that the passage of 609 days, or roughly 20

months, between his arrest and the commencement of trial violated his Sixth

Amendment right to a speedy trial as articulated in Barker v. Wingo, 407 U.S. 514

(1972). Although respondents argue that the state court’s decision is entitled to

deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28

U.S.C. § 2254, the district court did not err in finding that, even without such

deference, Doyle failed to establish a violation of his Sixth Amendment right to a

speedy trial. We affirm.

      Doyle was charged, along with Dean Maestas and Cheren Day, with

deliberate homicide, or in the alternative, deliberate homicide by accountability, in

the beating death of Richard Solwick in Butte, Montana, on March 3, 2003. See

Mont. Code Ann. §§ 45-5-102(1), 45-2-302 (2003). Maestas and Day pleaded

guilty and testified at Doyle’s trial. Doyle was convicted of deliberate homicide by

accountability, and was sentenced to 65 years of imprisonment. Unable to make

bail, Doyle was detained between his arrest on May 5, 2003, and the

commencement of trial on January 3, 2005.

      Petitioner’s claims, including the speedy trial claim, were rejected on direct

appeal. State v. Doyle, 160 P.3d 516, 522-26, ¶¶ 15-39 (Mont. 2007). Post-

conviction relief was denied, and that decision was affirmed. Doyle v. State, No.


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DA 08-0218 (Mont. Mar. 31, 2009) (unpublished). A timely habeas petition

followed. Adopting the magistrate judge’s findings and recommendations, the

district court dismissed all five claims and granted a certificate of appealability on

the only claim before us. Reconsideration was denied, and this appeal followed.

      The district court’s denial of a habeas petition is reviewed de novo.

McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir. 2003). Doyle’s speedy trial

claim was rejected under a state-law framework that purported to apply the factors

outlined in Barker, but which was later abrogated by the Montana Supreme Court

for having “strayed considerably from the actual balancing approach envisioned in

Barker.” State v. Ariegwe, 167 P.3d 815, 828 ¶ 27 (Mont. 2007) (abrogating in

part City of Billings v. Bruce, 965 P.2d 866 (Mont. 1998)). Declining to decide

whether the state court’s application of the now-abrogated Bruce framework was

contrary to or an unreasonable application of Barker, we turn first to the

constitutional question of whether Doyle has demonstrated a denial of his Sixth

Amendment right to a speedy trial.

      Barker adopted a “difficult and sensitive balancing process” through which

“the conduct of both the prosecution and the defendant are weighed.” Barker, 407

U.S. at 530, 533. Examining the four factors identified in Barker, courts must

determine “whether [the] delay before trial was uncommonly long, whether the


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government or the criminal defendant is more to blame for that delay, whether, in

due course, the defendant asserted his right to a speedy trial, and whether he

suffered prejudice as the delay’s result.” Doggett, 505 U.S. 647, 651 (1992); see

also United States v. Lam, 251 F.3d 852, 855 (9th Cir. 2001). The facts relevant to

this claim are not in dispute, and, since Doyle had the opportunity to develop the

record in state court, we presume that the state court’s factual findings are correct.

18 U.S.C. § 2254(e)(1).

      First, there is no dispute that the length of delay of roughly 20 months is

sufficient to cross the threshold and trigger further inquiry. See Doggett, 505 U.S.

at 651-52 (quoting Barker, 407 U.S. at 530-31). Considering the seriousness of the

charges, the volume of discovery, and the extensive forensic evidence involved, the

district court did not err in finding that the delay did not greatly exceed the

threshold and does not weigh heavily in Doyle’s favor. Lam, 251 F.3d at 857

(finding 15-month delay triggered further inquiry, it only “militate[d] slightly in

Lam’s favor”); see also United States v. King, 483 F.3d 969, 976 (9th Cir. 2007)

(finding nearly two years was not excessive).

      Second, when considering the reasons for the delay, Barker asks whether the

government or the defendant is more to blame. Vermont v. Brillon, 129 S. Ct.

1283, 1290 (2009). Also, “different weights should be assigned to different


                                            4                                     10-35330
reasons,” with any deliberate attempt to delay the trial in order to hamper the

defense weighted heavily against the government, a more neutral reason such as

negligence or overcrowding weighted less heavily, and a valid reason—such as a

missing witness—justifying appropriate delay. Barker, 407 U.S. at 531. The

district court concluded that the parties shared responsibility for much of the delay,

except that 175 days of delay were attributed to the state and 84 days were

attributed to the defense.

      Doyle argues that it was error for the district court to attribute the initial 225-

day period between his arrest on May 5, 2003, and the first trial setting on

December 15, 2003, to both parties when it is undisputed that the crime lab had not

completed its analysis of the evidence. As the recognition of a threshold dividing

ordinary delay from presumptively prejudicial delay suggests, “ordinary

procedures for criminal prosecution are designed to move at a deliberate pace.”

Barker, 407 U.S. 521 n.15 (citation omitted). Some delay to allow preparation for

trial would be consistent with the right to speedy trial. Doggett, 505 U.S. at 656

(“speedy trial standards recognize that pretrial delay is often both inevitable and

wholly justifiable”). Here, the charges were serious and the record, even without

the completed crime lab report, was voluminous. We find no error in this regard,

or in the district court’s attribution of the other periods of delay. Further, the 175-


                                            5                                     10-35330
day period that was attributed to the state alone as a result of the delay in the crime

lab’s processing of the evidence was not the result of deliberate or bad faith delay,

nor official negligence that interfered with timely processing. Barker, 407 U.S. at

531.

       Respondents concede that the third factor was properly weighed in favor of

Doyle as he asserted his right to a speedy trial by writing to the court two months

after his arrest, seeking release on bail, and moving to dismiss the charges on

speedy trial grounds before trial. Although the defense found it necessary to

request a number of continuances, none were made in bad faith or suggested an

effort to derail the proceedings. Lam, 251 F.3d at 858; McNeely v. Blanas, 336

F.3d 822, 831 (9th Cir. 2003).

       Fourth, while presumptive prejudice alone cannot demonstrate a Sixth

Amendment violation, “its importance increases with the length of delay.”

Doggett, 505 U.S. at 655-56. To warrant relief, “negligence unaccompanied by

particularized trial prejudice must have lasted longer than negligence demonstrably

causing such prejudice.” Id. at 657. Prejudice should be assessed in light of three

interests: “(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.


                                           6                                      10-35330
      Some prejudice is presumed to result from extended pretrial detention.

However, Doyle’s complaints about the conditions of confinement in an

overcrowded temporary facility without access to recreation and the “extreme

discomfort” he experienced related to the back surgery he underwent several

months prior to his arrest did not constitute oppressive pretrial incarceration or

demonstrate that the delay significantly aggravated the anxiety and concern beyond

what is inherent in pretrial detention. Further, the prejudice Doyle claims

concerning damage to his relationship with Katrina Bowen and their daughter was

not the product of the pretrial delay. See United States v. Gregory, 322 F.3d 1157,

1163 (9th Cir. 2003).

      Turning to the most serious form of prejudice, impairment of his defense,

Doyle claimed that the delay was used to pressure Bowen into testifying against

him at trial and resulted in the unavailability of several potential witnesses at trial.

Assuming Bowen’s equivocal testimony was credible, it did not support an

inference that the state had used the delay to badger or coerce Bowen into

incriminating Doyle. See Gregory, 322 F.3d at 1164. Although Kay Paige died

before the defense had an opportunity to interview her, nothing in the record

suggests that even if she could have been effectively impeached the testimony

could have been favorable to Doyle. Finally, while Doyle’s sister, his nephew, and


                                            7                                      10-35330
his nephew’s girlfriend were never interviewed and could not be located by the

investigator prior to trial, Doyle has made no claim about how the unavailability of

these witnesses impaired his defense. The possibility of prejudice from the

unavailability of these witnesses is not sufficient to demonstrate actual prejudice.

See Lam, 251 F.3d at 860.

      Considering the Barker factors together, the delay was not excessive, the

right to speedy trial was sufficiently asserted, the state bore more responsibility for

the delay than the defense but this factor is not weighted heavily against the state,

and the presumed prejudice in this case did not warrant relief for violation of the

Sixth Amendment right to a speedy trial.

             AFFIRMED.




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