Rommel Amos v. Joe Thornton

REVISED July 14, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT States Court of Appeals

United

Fifth Circuit

FILED

July 7, 2011

No. 09-60778

Lyle W. Cayce

Clerk

ROMMEL A. AMOS

Petitioner–Appellant

v.

JOE THORNTON

Respondent–Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:

Rommel A. Amos, a prisoner in the custody of the state of Mississippi,

appeals the district court’s dismissal of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254. Amos contends that he was denied his right to a speedy

trial and that his lawyer provided ineffective assistance of counsel by failing to

move for a speedy trial. The Mississippi Supreme Court determined these

claims to be without merit. Because Amos cannot show that this determination

was objectively unreasonable, we affirm the dismissal of his petition.

I.

No. 09-60778

Walter Vance was shot dead by Amos’s hand in Holmes County,

Mississippi, on Halloween night 2001. That evening, Amos and his friend Aaron

Hudson had decided to walk from Hudson’s home to the home of a friend who

lived nearby. On their way, they encountered a group of people that included

Vance and Vance’s friend Christopher Claiborne. After Vance insulted Amos’s

headgear, a physical altercation ensued between Vance, Claiborne, and Amos.

At some point thereafter, Amos came into possession of a .22 caliber pistol. He

fired five shots from it. Four of them hit Vance, causing his death.

Amos fled to Chicago the day after Vance’s death. He was arrested in

Chicago on December 21, 2001, under an Illinois statute that requires the arrest

and extradition of any person found in Illinois who has fled from justice after

being charged with a felony by another state.1 Amos demanded a speedy trial

on the day he was arrested and made two additional speedy-trial demands while

he was in custody in Illinois, one on January 18, 2002, the other on January 29.

Amos waived extradition and consented to be returned to Mississippi on

February 6, 2002. Amos was not indicted in Mississippi until July 16, 2002; he

was arrested on July 26. The record is silent as to the date on which Amos was

extradited to Mississippi. Nor does the record contain any explanation for the

five-month delay between Amos’s waiver of extradition in Illinois and his arrest

in Mississippi. Three days after his arrest, Amos filed a pro se motion for a

speedy trial. The trial court never acted on this motion. The court initially set

Amos’s case for trial on February 13, 2003, but the trial was continued and did

not begin until April 29, 2003. The record contains no explanation of the reasons

for this two-and-a-half-month continuance. The net result, then, was that Amos

was in custody for a little more than sixteen months between the time he was

first arrested and the time his trial began.

1

See 725 ILL. COMP. STAT. 225/2.

2

No. 09-60778

At trial, Amos advanced a theory of self defense. According to Amos, after

he responded angrily to Vance’s insulting his headgear, Vance, Claiborne, and

another person violently assaulted him, punching him, kicking him, and beating

him with a liquor bottle. As the beating was going on, Hudson returned to his

home, retrieved Amos’s pistol, returned to the site of the beating, and handed

the pistol to Amos, who then fired it toward his assailants. Alexis Noel,

Hudson’s girlfriend, also testified that Hudson retrieved the gun and then

passed it to Amos while Amos was being beaten. However, Hudson denied that

he retrieved the gun and brought it to Amos during the beating. Rather, Hudson

testified that Amos came back to Hudson’s home about five or ten minutes after

the beating, retrieved the gun himself, walked back outside, and then shot

Vance. Claiborne denied that he and Vance had assaulted Amos. Claiborne

testified that after Vance insulted Amos, Amos became extremely angry. Vance

and Claiborne shoved Amos to the ground but then helped him back up; no

assault took place. Afterwards, Amos walked away, retrieved the gun from

Hudson, pursued Vance and Clairbone, and shot Vance in the back. Katrina

Venable, who was among the group of people Amos and Hudson encountered,

corroborated Claiborne’s account of the events giving rise to the shooting. The

jury rejected Amos’s self-defense claim and convicted him of murder. The court

sentenced him to life in prison.

Amos then sought relief on both direct and collateral review. Amos alleged

manifold claims for relief on his state-court direct appeal, including both of the

claims at issue on this appeal. The Court of Appeals of Mississippi determined

that both claims were without merit.2 However, Amos did not petition the

Mississippi Supreme Court for a writ of certiorari, so his inclusion of these

2

See Amos v. State, 911 So. 2d 644, 649–50 & 657 (Miss. Ct. Ap. 2005).

3

No. 09-60778

claims in his direct appeal did not exhaust them for federal habeas purposes.3

Next, Amos moved for permission to seek post-conviction relief in the Mississippi

Supreme Court. This motion, too, alleged numerous claims for relief. The court

denied the motion on the grounds that Amos’s ineffective-assistance-of-counsel

claims “do not pass the standard set forth in Strickland v. Washington” and

denied the remaining claims, including the speedy-trial claim, on the alternative

bases that they were procedurally barred and without merit. Amos then turned

to federal district court, where he filed a habeas petition pressing twenty

separate claims for relief (including an ineffective-assistance claim that

identified thirty-five separate instances of allegedly ineffective representation).

The district court denied the petition in its entirety. We granted a certificate of

appealability on Amos’s claim that he suffered a violation of his constitutional

right to a speedy trial, which the district court determined was procedurally

barred,4 and on his claim that his lawyer’s failure to file a motion for a speedy

trial violated his right to the effective assistance of counsel, which the district

court determined was without merit.

II.

3

See O’Sullivan v. Boerckel, 526 U.S. 838, 845–47 (1999).

4

Even though the district court was correct to conclude that Amos procedurally

defaulted his speedy-trial claim, see Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999), it

nonetheless erred by applying the doctrine of procedural bar. The State’s response to Amos’s

petition did not contend that Amos had procedurally defaulted his speedy-trial claim, and we

have previously held that it is an abuse of discretion for a district court to sua sponte apply “the

procedural bar defense when the petitioner has absolutely no notice or opportunity to respond,”

Prieto v. Quarterman, 456 F.3d 511, 518 (5th Cir. 2006). Amos argues that we must vacate

the judgment and remand this matter to the district court so that it can review his claim on

the merits. Not so. An error is grounds for reversal only if it is not harmless, FED R. CIV. P.

61, and any error that does affect the losing party’s substantial rights is harmless, e.g. United

States v. Guillermo Balleza, 613 F.3d 432, 434 (5th Cir.) (per curiam), cert. denied, 131 S. Ct.

680 (2010). In light of our determination that Amos is not entitled to relief on his speedy-trial

claim, see infra Section II, the district court’s error in dismissing that claim as procedurally

barred was harmless, and remand is unnecessary. See generally Scott v. Johnson, 227 F.3d

260, 262 (5th Cir. 2000) (“[T]his Court may affirm the denial of habeas relief on any ground

supported by the record.”).

4

No. 09-60778

The Sixth Amendment guarantees every criminal accused “the right to a

speedy . . . trial.”5 Whether a criminal defendant has been deprived of his right

to a speedy trial is a mixed question of law and fact.6 Under the Antiterrorism

and Effective Death Penalty Act, we review a state court’s resolution of a mixed

question of law and fact under the deferential standard of 28 U.S.C.

§ 2254(d)(1).7 Accordingly, Amos is entitled to relief only if the state court’s

rejection of his speedy-trial claim resulted in a decision that was contrary to, or

involved an objectively unreasonable application of, clearly established federal

law as articulated in the decisions of the Supreme Court.8

Section 2254(d)(1) imposes a “‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the

benefit of the doubt.”9 It is not enough for a petitioner to show that a state

court’s decision was incorrect or erroneous; he must show that the decision was

objectively unreasonable, which is “a substantially higher threshold.”10 Very few

petitioners can make this showing.11 “As a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on

5

U.S. CONST. amend VI.

6

United States v. Villareal, 613 F.3d 1344, 1349 (11th Cir. 2010); United States v.

Wanigasinghe, 545 F.3d 595, 597 (7th Cir. 2008); United States v. Brown, 498 F.3d 523, 530

(6th Cir. 2007).

7

E.g., Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir. 2008).

8

See Goodrum v. Quarterman, 547 F.3d 249, 256 (5th Cir. 2008).

9

Cullen v. Pinholster, 131 S. Ct. 1388, 3198 (2011) (quoting Woodford v. Viscotti, 537

U.S. 19, 24 (2002) (per curiam)).

10

Schiro v. Landrigan, 550 U.S. 465, 473 (2007); see also Lockyer v. Andrade, 538 U.S.

63, 75–76 (2003).

11

See Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“It bears repeating that even

a strong case for relief does not mean the state court’s contrary conclusion was

unreasonable. . . . If this standard is difficult to meet, that is because it was meant to be.”).

5

No. 09-60778

the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”12 In assessing the reasonableness

of a state court’s application of clearly established federal law, our review “is

limited to the record that was before the state court.”13

Two features of AEDPA deference are particularly pertinent to our

analysis of Amos’s speedy-trial claim. First, this always-substantial deference

is at an apex when we are reviewing a state court’s application of a broad,

general standard whose application “to a specific case can demand a substantial

element of judgment.”14 Determining whether a defendant’s speedy-trial right

has been violated requires the application of just such a standard. As the

Supreme Court explained in its seminal decision in Barker v. Wingo, the right

to a speedy trial “is a more vague concept than other procedural rights,” and it

is “impossible to determine with precision when the right has been denied. . . .

[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the

right in the particular context of the case.”15 Barker identified four factors that

structure the inquiry into whether a defendant has been deprived of his right to

a speedy trial: “(1) the length of delay, (2) the reason for the delay, (3) the

defendant’s assertion of his right to speedy trial, and (4) prejudice to the

defendant.”16 This four-factor balancing test eschews “rigid rules” and

“mechanical factor-counting” in favor of “‘a difficult and sensitive balancing

12

Id. at 786–87.

13

Pinholster, 131 S. Ct. at 1398.

14

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

15

Barker v. Wingo, 407 U.S. 514, 521–22 (1972); see also Gray v. King, 724 F.2d 1199,

1202 (5th Cir. 1984) (“What is acceptable in one case . . . may not be so in another; much

depends on the complexity of the case.”).

16

Goodrum, 547 F.3d at 257 (citing Barker, 407 U.S. at 530).

6

No. 09-60778

process.’”17 Section 2254(d)(1) thus requires us to give the widest of latitude to

a state court’s conduct of its speedy-trial analysis.

Second, the deference due under § 2254(d)(1) is not diminished by the fact

that the Mississippi Supreme Court did not explain the reasons for its

determination that Amos’s claim is without merit. “Where a state court's

decision is unaccompanied by an explanation, the habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the state court to

deny relief.”18 To assess whether a petitioner has made this showing, we

determine “what arguments or theories . . . could have supported[] the state

court’s decision” and then ask whether fairminded jurists could conclude that

those arguments and theories are consistent with the Supreme Court’s relevant

teachings.19 If there is any objectively reasonable basis on which the state court

could have denied relief, AEDPA demands that we respect its decision to do so.

With these guiding principles in mind, we turn to an analysis of Barker’s four-

factor balancing test.

“Barker’s first factor, length of delay, performs a dual function.”20 Initially,

it operates as a screening device.21 “Simply to trigger a speedy trial analysis, an

accused must allege that the interval between accusation and trial has crossed

the threshold” that separates ordinary delay from “‘presumptively prejudicial’

17

Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993) (quoting Barker, 407 U.S. at

533).

18

Richter, 131 S. Ct. at 784.

19

Id. at 786.

20

Nelson, 989 F.2d at 851.

21

See Barker, 407 U.S. at 530 (“The length of the delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.”).

7

No. 09-60778

delay.”22 If the accused can make this threshold showing, we next “‘consider, as

one factor among several, the extent to which the delay stretches beyond the

bare minimum needed to trigger judicial examination of the claim.’”23

As to the first of these functions, we conclude that Amos has made a

threshold showing of presumptively prejudicial delay. A defendant’s right to a

speedy trial “attaches at the time of arrest or indictment, whichever comes

first.”24 The delay between arrest or indictment and trial crosses the line from

“ordinary” to “presumptively prejudicial” somewhere around the one-year

mark.25 Here, a little more than sixteen months elapsed between Amos’s arrest

in Illinois and the beginning of his trial in Mississippi. This is sufficient to

trigger the full, four-step speedy-trial inquiry under Barker.26

22

Doggett v. United States, 505 U.S. 647, 651–52 (1992).

23

Nelson, 989 F.2d at 851 (quoting Doggett, 505 U.S. at 652).

24

Id; see also Robinson v. Whitley, 2 F.3d 562, (5th Cir. 1993) (“The relevant period of

delay is that following accusation, either arrest or indictment, whichever occurs first.” (citing

Dillingham v. United States, 423 U.S. 64 (1975)).

25

See United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003) (citing United

States v. Bergfield, 280 F.3d 486, 488 (5th Cir. 2002)); see also Nelson, 989 F.2d at 851 (citing

Doggett, 505 U.S. at 652 n.1).

26

The State contends that Amos suffered from only an eight-month delay, reasoning

that because “Mississippi lacked jurisdiction over Amos until his extradition” from Illinois, the

speedy-trial clock “could not have begun to run” until Amos was indicted in July of 2002.

Amos, 911 So. 2d at 649. However, the fact that an accused is in the custody of another

sovereign does not absolve a state of its responsibility under the Speedy Trial Clause to

prosecute the accused with customary dispatch. Smith v. Hooey, 393 U.S. 374, 377–83 (1969);

Prince v. Alabama, 507 F.2d 693, 700–02 (5th Cir. 1975). That rule applies with particular

force here, since Amos’s arrest in Illinois came at Mississippi’s behest, see Amos, 911 So.2d at

649; 725 ILL. COMP. STAT. 225/3; supra note 1, and there is no indication that Amos attempted

to frustrate or delay his extradition, see Braden v. Capps, 517 F.2d 221, 223 n.4 (5th Cir. 1975);

see also United States v. Manning, 56 F.3d 1188, 1195 (9th Cir. 1995). Under these

circumstances, Amos’s right to a speedy trial attached at the time of his arrest in Illinois, and

the eight months that lapsed between his arrest there and his indictment in Mississippi must

be included in the calculation of the total pretrial delay. See Smith, 393 U.S. at 382 (criticizing

a state court for “allowing doctrinaire concepts of ‘power’ and ‘authority’ to submerge the

practical demands of the constitutional right to a speedy trial”).

8

No. 09-60778

We turn now to the second function performed by Barker’s first factor, an

inquiry into “the extent to which the delay extends beyond the bare minimum

required to trigger a Barker analysis,”27 which is particularly “significant to the

speedy trial analysis because . . . the presumption that pretrial delay has

prejudiced the accused intensifies over time.”28 The bare minimum required to

trigger a Barker analysis is one year.29 A delay must persist for at least eighteen

months over and above that bare minimum for this factor to strongly favor the

accused.30 The delay between Amos’s arrest and trial only exceeded the one-year

minimum by about four months. We have previously concluded that such a

delay, “[a]lthough long enough to prompt a full Barker-analysis,” is “not long

enough to weigh heavily in favor” of the accused,31 and we see no reason to draw

a different conclusion here.

Next we consider the reasons for the delay. The burden is on the

Government to “assign[] reasons to justify the delay.”32 Different reasons are

entitled to different weight:

27

Goodrum, 547 F.3d at 258.

28

Doggett, 505 U.S. at 652.

29

See supra note 18; see also Doggett, 500 U.S. at 658 (identifying one year as the length

of delay that is “generally sufficient to trigger judicial review”).

30

See Goodrum, 547 F.3d at 258; see also United States v. Molina-Solorio, 577 F.3d 300,

305 (5th Cir. 2009) (collecting cases).

31

United States v. Frye, 372 F.3d 729, 737 (5th Cir. 2004) (describing a post-indictment

delay of “approximately 16 months”); see also United States v. Parker, 505 F.3d 323, 328–29

(5th Cir. 2007) (“As for length of delay, the seventeen-month period . . . does not weigh in [the

accused’s] favor.”).

32

Barker, 407 U.S. at 531; see also United States v. Ingram, 446 F.3d 1332, 1337 (11th

Cir. 2006) (“‘Because the prosecutor and the court have an affirmative constitutional obligation

to try the defendant in a timely manner ... the burden is on the prosecution to explain the

cause of the pre-trial delay.’” (quoting United States v. Brown, 169 F.3d 344, 349 (6th Cir.

1999))); McNeely v. Balanas, 336 F.3d 822, 827 (9th Cir. 2003) (collecting cases).

9

No. 09-60778

At one extreme, a deliberate delay to disadvantage the defense is

weighted heavily against the state. At the other end of the

spectrum, delays explained by valid reasons or attributable to the

conduct of the defendant weigh in favor of the state. Between these

extremes fall unexplained or negligent delays, which weigh against

the state, “but not heavily.”33

In this case, “[a]bsolutely no reason for the delay appears in the record; there is

no indication that either Amos or the State requested a continuance or otherwise

caused the delay.”34 Because the delay is wholly unexplained, this factor weighs

in Amos’s favor, but the advantage that accrues to him is small.35

The third Barker factor asks whether the defendant “diligently asserted

his speedy trial right.”36 The burden is “on the defendant to alert the

government of his grievances.”37 A “‘defendant’s assertion of his speedy trial

right’ receives ‘strong evidentiary weight,’ while ‘failure to assert the right will

make it difficult for a defendant to prove that he was denied a speedy trial.’”38

This factor can also cut against the defendant where there was a lengthy delay

between his arrest or indictment and his assertion of his speedy-trial right.39

Here, the record reflects that Amos timely asserted his right to a speedy trial.

He initially asserted it on the day he was arrested in Illinois, and he reasserted

it to the Illinois court twice over the next five weeks. After being extradited to

33

Goodrum, 547 F.3d at 248 (footnotes and internal citation omitted) (quoting Cowart

v. Hargett, 16 F.3d 642, 647 (1994)).

34

Amos, 911 So. 2d at 649.

35

See Cowart, 16 F.3d at 647.

36

United States v. Parker, 505 F.3d 323, 329 (5th Cir. 2007).

37

Robinson, 2 F.3d at 569.

38

Molina-Solorio, 577 F.3d at 305 (quoting Barker, 407 U.S. at 531–32).

39

Parker, 505 F.3d at 329–30 (“Mere assertion of the speedy trial right is not enough

for this factor to weigh in a defendant’s favor. If he waits too long, his pre-assertion silence will

be weighed against him.”).

10

No. 09-60778

Mississippi, his wife filed a motion that stated,“I, LaMonica Henderson on the

behalf of Rommel Amos would like to file a motion for a speedy trial.”40 She filed

this motion just three days after Amos was arrested in Mississippi and less than

two weeks after he was indicted. Amos’s diligent, non-dilatory request for a

speedy trial weighs strongly in his favor.

The fourth and final Barker factor is the prejudice suffered by the

defendant due to the delay. “[O]rdinarily the burden is on the defendant to

demonstrate actual prejudice. But where the first three factors together weigh

heavily in the defendant’s favor, we may conclude that they warrant a

presumption of prejudice, relieving the defendant of his burden.”41 Here,

although Amos’s timely assertion of his right to a speedy trial weighs heavily in

his favor, the unexplained reason for the delay and the relatively short length

of the delay both weigh in his favor only slightly. Accordingly, no presumption

of prejudice is warranted.42 Barker thus must demonstrate that he suffered from

actual prejudice. “‘Actual prejudice’ is assessed in light of the three following

interests of the defendant: (1) ‘to prevent oppressive pretrial incarceration’; (2)

‘to minimize anxiety and concern of the accused’; and (3) ‘to limit the possibility

that the defense will be impaired.’”43

Amos’s only argument as to how he was prejudiced by the delay is that his

ability to put on a defense was impaired by the fact that several witnesses’

40

The same day, Amos filed a signed certification stating that he granted Henderson

permission to file motions on his behalf. Amos also signed the motion itself.

41

Molina-Solorio, 577 F.3d at 307 (internal citation omitted).

42

See Goodrum, 547 F.3d at 260 (determining that no presumption of prejudice was

warranted where two of the first three Barker factors weighed heavily in the defendant’s

favor); United States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010) (“[D]elays of less than five

years are insufficient, by duration alone, to give rise to a presumption of prejudice and relieve

the defendant of satisfying Barker’s fourth prong.”),

43

United States v. Harris, 566 F.3d 422, 433 (5th Cir. 2009), cert. denied, 130 S. Ct.

1687 (2010).

11

No. 09-60778

memories of the murder had faded . Our review of the trial transcript persuades

us that this claim is unfounded. Most of what Amos points to as instances of the

witnesses’ faded memories are, in actuality, nothing more than instances of

different witnesses having different recollections of what happened. Some

witnesses remembered Amos fleeing the scene in his girlfriend’s car; others

testified the car was elsewhere. Amos and Noel testified that Hudson brought

Amos the gun while he was on the ground being attacked; Hudson testified that

Amos came to Hudson’s home and got the gun after the attack concluded. All of

the witnesses had slightly different memories of the precise location where the

shooting took place. The mere fact that various witnesses recounted slightly

different versions of what happened is not evidence that one or more of those

witnesses had forgotten what happened. Such discrepancies are to be expected;

the inevitable need to sort through them is one of the primary reasons for the

jury-trial system. Amos offers neither argument nor evidence that, had the trial

taken place sooner, all of the witnesses would have testified consistently and

that this testimony that would have been more favorable to him.

In addition, several of what Amos identifies as instances of faded memory

simply do not withstand close scrutiny. For example, Amos contends that

Venable had forgotten whether she told the investigating officers that Vance and

Claiborne had attacked Amos. But Venable testified that she had a clear and

specific recollection that Vance and Claiborne did not assault Amos, that they

pushed and shoved him but did not exchange blows. Amos’s attorney tried to

impeach Venable’s recollection based on the fact that she used the word “fight”

in the statement she gave police the day after the murder, but Venable insisted

that her recollection had not changed and that her statement was consistent

with her testimony. Amos also contends that the three investigating officers

could not recall who collected the shell casings from the scene. But each of the

12

No. 09-60778

officers testified specifically as to what role they played in the policing the scene,

and their testimony was consistent.

The few genuine instances of faded memories that Amos has identified do

not show that he was prejudiced by his delayed trial. “[W]hile ‘faded memory

may result in prejudice, we have held that in order to prejudice the defense to

the extent necessary to constitute a speedy trial violation, the faded memory

must substantially relate to a material fact in issue.’”44 Amos is correct that the

investigating officers were unable to recall precisely how many people were on

the scene when they arrived. And Clairborne could not remember the exact date

on which he gave a statement to the police, exactly how many shots he heard, or

how he disposed of his liquor bottle. But these collateral factual details were not

material to Amos’s theory of self defense. On the core issues, none of the

witnesses were unable to recall what happened or testified that their memories

of the murder had faded. The record does not substantiate Amos’s claim that his

ability to put on a defense was prejudiced by the pretrial delay.

As a result, fairminded jurists could easily conclude that Amos did not

suffer a violation of his Sixth Amendment right to a speedy trial. It follows that

the Mississippi Supreme Court’s rejection of Amos’s speedy-trial claim was

neither contrary to nor involved an unreasonable application of clearly

established federal law. The district court did not err by dismissing this claim.

III.

Our disposition of Amos’s speedy-trial claim forecloses relief on his claim

that his lawyer rendered constitutionally ineffective assistance of counsel by

failing to file a motion for a speedy trial. Section 2254(d)(1) requires us to

uphold a state court’s denial of an ineffective-assistance-of-counsel claim so long

as that denial was not an unreasonable application of the two-pronged

44

See Jamerson v. Estelle, 666 F.2d 241, 245 (5th Cir. 1982) (quoting United States v.

Edwards, 577 F.2d 883, 889 (5th Cir. 1978)).

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No. 09-60778

deficiency–prejudice standard articulated by Strickland v. Washington.45 “With

respect to prejudice, a challenger must demonstrate ‘a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’”46 Specifically, where prejudice is alleged to arise from

counsel’s failure to file a motion, the petitioner must show there was a

reasonable probability “that the trial court would have granted it, or would have

reversibly erred by refusing it.”47 If Amos’s speedy-trial claim lacked merit, then

he cannot show that there is a reasonable probability that a motion for a speedy

trial would have been granted if his attorney had filed it. We have already

concluded that it was objectively reasonable for the state court to determine that

Amos’s speedy-trial claim lacked merit. A fortiori, it was also objectively

reasonable for that court to determine that Amos could not demonstrate that he

was prejudiced by his attorney’s failure to move for a speedy trial.

IV.

For the reasons discussed above, the district court’s judgment dismissing

Amos’s habeas petition with prejudice is AFFIRMED.

45

See Tenny v. Dretke, 416 F.3d 404, 406 (5th Cir. 2005) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

46

Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 694).

47

Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008); see also United States v. Flores-

Ochoa, 139 F.3d 1022, 1024 (5th Cir. 1998) (determining that a defendant cannot show that

he was prejudiced by his counsel’s “failing to move for a continuance” where “there is no

evidence that the court would have granted the motion.”); United States v. Gibson, 55 F.3d 173,

179 5th Cir. 1995) (“Counsel is not required by the Sixth Amendment to file meritless

motions.”).

14