Divers v. Cain

• Decision Date: 03 October 2012
• Docket Number: No. 10–31149.,10–31149.
• Citation: 698 F.3d 211
• Parties: James E. DIVERS, Petitioner–Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

698 F.3d 211

James E. DIVERS, Petitioner–Appellant,

v.Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee.

No. 10–31149.

United States Court of Appeals,Fifth Circuit.

Oct. 3, 2012.

Rebecca Louise Hudsmith, Fed. Pub. Def., Lafayette, LA, for Petitioner–Appellant.

Madeleine Mary Slaughter–Young, Asst. Dist. Atty., Monroe, LA, for Respondent–Appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before STEWART, Chief Judge, and ELROD and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

James Divers, a Louisiana prisoner serving consecutive life sentences for second-degree murder, appeals the district court's denial of his application for relief under 28 U.S.C. § 2254. We granted a certificate of appealability on the question of whether Divers waived his speedy trial rights under the Sixth Amendment. We conclude that the merits of Divers' speedy trial claim were adjudicated by the state courts, and the state courts' resolution of that claim was neither contrary to, nor involved an unreasonable application of federal law. Accordingly, the district court's denial of relief is AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

Divers was indicted in 1988 on two counts of first-degree murder. He was convicted of both counts in 1991 and sentenced to death. In September 1996, the Louisiana Supreme Court vacated the convictions because the trial court had refused to dismiss jurors unfairly predisposed to vote for the death penalty. State v. Divers, 681 So.2d 320, 327 (La.1996). Rehearing was denied that October, and the case was remanded for a new trial.

In April 1998, Divers filed a motion in state court to quash the original indictment for lack of prosecution, as over a year had elapsed since remand. See La.Code Crim. Proc. Ann. art. 582. The court denied the motion, in part because Divers' replacement counsel, serving because the prior counsel had been injured and was unable to appear, had waived all applicable prescriptive periods. A state appellate court denied Divers' motion for a supervisory writ because the record supported the trial court's finding that counsel had acted on Divers' behalf in moving for continuances. The Louisiana Supreme Court also denied the writ. State v. Divers, 742 So.2d 874 (La.1999). In 1999 Divers succeeded in having the indictment dismissed due to systemic racial discrimination in the selection of grand jury forepersons. The State unsuccessfully sought appellate review. State v. Divers, 793 So.2d 308 (La.Ct.App.2001).

On September 26, 2002, Divers was re-indicted on the two first-degree murder counts. In early 2003, the State reduced the charges to second-degree murder, for which Divers was found guilty and sentenced to two consecutive sentences of life imprisonment. A state appellate court affirmed the convictions and sentences. State v. Divers, 889 So.2d 335 (La.Ct.App.2004).

Divers filed a state court application for post-conviction relief on numerous grounds, including alleged infringement of his right to a speedy trial. The trial court concluded that Divers' contentions either lacked merit or had been adjudicated on direct appeal. The state appellate and supreme courts declined to review Divers' claims, issuing no opinion.

Divers then filed this Section 2254 petition in district court. The district court denied habeas relief, and Divers timely appealed. We granted a COA as to “[w]hether or not Divers was denied his Sixth Amendment right to a speedy trial and whether his purported waiver of that right was insufficient.” The parties were ordered to brief “whether this claim was properly exhausted in the state court and whether it was properly raised to the federal district court.”

DISCUSSION

The Sixth Amendment guarantees that for “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The right to a speedy trial is applied to the states via incorporation by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222–23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Supreme Court has identified four factors that should be weighed in determining whether a defendant has been denied his speedy trial right: length of delay, reason for delay, assertion of the right by the defendant, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The district court considered the speedy trial claim on the merits, applying the Barker factors.

There is a question of whether Divers presented this issue to the state courts. The State concluded that Divers adequately presented this claim and it expressly waived any issue of exhaustion in state court. See§ 2254(b)(1)(A). The exhaustion requirement “is not a jurisdictional prerequisite and, as a result, may be waived by the State.” Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir.1998).¹ We accept the State's waiver. See id. at 1065–66.

I. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may not grant habeas relief on “any claim that was adjudicated on the merits in State court proceedings” unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

Our threshold inquiry is whether Divers' Sixth Amendment speedy-trial claim was adjudicated on its merits in the state court proceedings. If it was, then we may not grant relief unless the state courts' application of federal law was unreasonable. If not, then we review Divers' speedy trial claim “under pre-AEDPA standards of review,” which is de novo for this mixed question of law and fact. Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003); see United States v. Molina–Solorio, 577 F.3d 300, 303–04 (5th Cir.2009).

As for the appropriate standard of review, the State is amenable to our assessing the Barker factors de novo while Divers has analyzed the issues under AEDPA deferential standards. The governing standard of review is for this court to determine, not the parties. Molina–Solorio, 577 F.3d at 303. We examine the state court proceedings to determine how the speedy-trial arguments were presented and resolved.

In denying Divers' petition for post-conviction relief, the state habeas court found that with the exception of one claim not relevant here, his arguments had been “previously considered and rejected” by the intermediate appellate court and the supreme court. In light of this determination, we examine the “last clear state court decision of any substance.” Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir.2010). The appeal from his second-degree murder convictions is the instructive decision. State v. Divers, 889 So.2d 335, 356–57 (La.Ct.App.2004).

The state court did not rest its decision on procedural grounds. It is not entirely evident whether the court applied the Sixth Amendment's right to a speedy trial or only the similar guarantees granted by Louisiana law. See id. (citing La.Code Crim. Proc. Ann. art. 582 and state caselaw). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 784–85, 178 L.Ed.2d 624 (2011).

The state court opinion gives no contrary indication. Under the heading “Speedy Trial Violations,” the court substantively addressed the issue of whether Divers' case had timely proceeded to trial. State v. Divers, 889 So.2d 335, 356–57 (La.Ct.App.2004). Although not explicitly invoking the U.S. Constitution or federal caselaw, the state court's analysis of state law went to the crux of the Sixth Amendment speedy trial analysis. AEDPA does not require state courts to explain their reasoning, “cite[,] or even be aware of” Supreme Court precedent before benefitting from deference. Harrington, 131 S.Ct. at 784.

Another circuit has written that deciding the merits of a case “using the language of state law is a common practice” for courts confronted with, often overlapping, federal and state claims. Childers v. Floyd, 642 F.3d 953, 968 (11th Cir.2011) (en banc). Judging this a sound principle, we conclude that the Louisiana court should be considered to have resolved the federal constitutional speedy-trial issue on the merits even though only the similar state rules and authorities were mentioned. See, e.g., Priester v. Vaughn, 382 F.3d 394, 397 (3d Cir.2004) (applying AEDPA although “the Pennsylvania Superior Court cited only Pennsylvania law with no reference to federal law”); Thomas v. Carroll, 581 F.3d 118, 124 (3d Cir.2009) ( “Although the Delaware Supreme Court cited only state law in rejecting Thomas' claims, that decision is entitled to AEDPA deference,” in part, because “those state authorities were consistent with applicable Supreme Court precedent.”).

Affording deference here is particularly appropriate given that Divers' arguments to the state courts prominently featured the Louisiana Code, while giving comparatively less treatment to the federal Constitution.

We now turn to the merits of the Section 2254 application.

II. Speedy Trial Claim

AEDPA imposes “a highly deferential standard for evaluating state-court rulings ....” Amos v. Thornton, 646 F.3d 199, 204 (5th Cir.2011) (quotation marks and citation omitted). Even if the state court was apparently wrong, the decision must also be “objectively unreasonable, which is a substantially higher threshold.” Id. (quotation marks and citation omitted).

“Very few petitioners” can make the requisite showing, and due to the somewhat indeterminate and fact-intensive nature of the speedy trial right, our ...