Stuard v. Stewart ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE PRIESTLY STUARD,  No. 03-15300
Petitioner-Appellant,
v.  D.C. No.
CV-00-02149-EHC
TERRY L. STEWART, Deputy,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Submitted September 14, 2004*
San Francisco, California
Filed March 22, 2005
Before: James L. Oakes,** Andrew J. Kleinfeld, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Kleinfeld
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable James L. Oakes, Senior Circuit Judge of the United
States Court of Appeals for the Second Circuit, sitting by designation.
3485
STUARD v. STEWART 3487
COUNSEL
Donald W. MacPherson (briefed), The MacPherson Group,
Phoenix, Arizona, for the appellant.
Vincent L. Rabago, Assistant Attorney General, Criminal
Appeals Section, Tucson, Arizona, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This is a habeas petition in which the petitioner claims he
was unconstitutionally forced to choose between two constitu-
tional entitlements, his right to a speedy trial and his right to
effective assistance of counsel.
Facts
Stuard committed an astonishing number of armed rob-
beries. His restitution order, for the robberies of which he was
3488 STUARD v. STEWART
convicted, showed a few hundred dollars each payable to Sub-
way, Baskin Robbins, Domino’s, Dairy Queen, Kentucky
Fried Chicken, Video Doctor, Little Caesars, and Payne &
Morrison Flowers. Altogether he was convicted of ten armed
robberies and four aggravated assaults, and sentenced to 266
years.
As Stuard approached trial, about three months after being
indicted on one of the robberies, the prosecutor moved to con-
solidate the case for trial with another indictment charging
him with the rest. This put considerable pressure on defense
counsel, who now had to try a much more extensive case that
involved many more witnesses. On September 19, at the pre-
trial conference held to set a firm trial date, the prosecutor
suggested that defense counsel might need more time to pre-
pare than the Arizona speedy trial rule1 would allow, and
expressed concern that the conviction she expected to win
might be subject to challenge if defense counsel was forced
to try the case without adequate preparation time. The speedy
trial rule required that trial be within eleven days, unless the
defendant waived his right to have trial that fast. The prosecu-
tor and the court expressed willingness to accept a delayed
date if defendant wanted it. Though the prosecutor said she
did not think that defense counsel could be ready, defense
counsel was ambiguous in his assessment of whether he could
prepare in time. Defense counsel told the judge that a date
within the Arizona rule deadline would be “kind of difficult,”
but that his client did not want to waive his right to trial
within the next eleven days.
The judge then engaged in an extended colloquy with
Stuard, explaining that his lawyer felt that another six to eight
weeks would be desirable for preparation, and that his lawyer
had not yet had sufficient time to personally question the
detectives on the case. Stuard told the judge “I am not inter-
ested in waiving any time at all,” and “I don’t know why he
1
Ariz. R. Crim. P. 8.
STUARD v. STEWART 3489
would need to talk to the detectives in the case because they
were already in the police report.” The judge patiently
explained that his lawyer might be able to generate some con-
tradictions between what the detectives said orally and what
they said in the police report, which would help the defense,
but Stuard insisted on going to trial within the eleven days
allowed by the rule. Stuard told the judge that even though
some delay would mean he “could get a better defense,” he
did not “want to spend the rest of [his] life in jail waiting for
trial.” The judge reiterated to Stuard that it was up to him
whether he wanted to waive any claim to better preparation of
counsel. Stuard snapped back that “there is a sort of Catch-
22” between his right to a speedy trial and his right to have
his lawyer fully informed. Although Stuard recognized that
his lawyer was “probably overworked,” he remarked “that’s
not my problem.”
In fact it was his problem. He could wind up spending the
rest of his life locked up after trial, as he knew from plea
negotiations. But he insisted on going to trial in the face of
what appears to have been good advice to the contrary. His
lawyer said “I can try to be ready,” and skillfully shifted to
the prosecutor the burden of making discovery immediately
available. (Of course, trial tactics often have layers upon lay-
ers. It is conceivable that the prosecutor’s generosity was
really because she needed more time, and that Stuard’s insis-
tence on racing huckledebuck to trial was because he knew
some witnesses she had not yet found.)
On the day set for trial, September 30, Stuard’s lawyer said
“I guess we’re announcing we’re ready.” The prosecutor, not
defense counsel, pushed for delay. She expressed concern that
she could win the case and lose the appeal if Stuard could
establish that he had been forced to trial without adequate
time for his lawyer to prepare. The judge again engaged in an
extended and careful colloquy with Stuard, to assure the court
that Stuard was acting knowingly and voluntarily in declining
to waive his right to immediate trial, even though he could get
3490 STUARD v. STEWART
more time for his lawyer to prepare if he waived. Stuard
insisted on proceeding.
They had yet another conference before trial commenced,
this time in chambers (but transcribed). The judge obtained
Stuard’s assurances that he still wanted to proceed to trial
immediately, and also that he had been informed of and had
turned down an offer of a plea bargain with his eyes open.
Stuard told the judge that he was ready to proceed, and that
he had turned down a deal for forty years, because “I offered
— I would do 15, because I figure that’s about the number of
robberies I did.”
After his direct appeal, Stuard sought post-conviction relief
in the Arizona courts based on a variety of claims, including
ineffective assistance of counsel. The Superior Court of Ari-
zona held that Stuard “clearly waived any argument regarding
preparation of his attorney” and the Arizona Court of Appeals
summarily denied review. He then petitioned for a writ of
habeas corpus. The district court denied his petition, and he
appeals. The only issue certified on appeal (we decline to
expand the certification) is “whether the district court erred by
determining that Stuard, by asserting his right to a speedy
trial, waived his right to raise ineffective assistance of counsel
claims based on counsel’s lack of preparation.”
Analysis
Though the state’s brief claims that Stuard procedurally
defaulted in state court, it presents no argument for why or
how this default came about, and merely tells us to root
around in papers it filed elsewhere and infer the argument.
For all we know, Stuard may have procedurally defaulted, but
we are not going to construct an argument for the state sua
sponte, depriving Stuard’s counsel of a fair chance to respond
STUARD v. STEWART 3491
to it. The procedural default argument is waived because it is
not briefed.2
In a federal habeas corpus petition challenging state con-
finement, the petitioner must demonstrate that the state court
decision is “contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court.”3 Thus, Stuard needs a Supreme Court deci-
sion that the Arizona court acted contrary to or unreasonably
applied. The ones he cites are Simmons v. United States4 and
United States v. Jackson.5
In Simmons, the only way the defendant could show stand-
ing to assert his Fourth Amendment rights against a search of
his luggage was to testify that it was his luggage, but compel-
ling him to testify would violate his Fifth Amendment right
not to incriminate himself.6 In Jackson, if the defendant
claimed his Sixth Amendment right to trial by jury, then he
exposed himself to the death penalty, which he could avoid by
waiving his Fifth Amendment right not to plead guilty.7 In
both cases, the Supreme Court relieved the defendant of the
burden of these choices.
[1] Stuard argues that he was burdened with a similar
“Catch-22.”8 But the cases he cites do not support him
2
Trest v. Cain, 552 U.S. 87, 89 (1997).
3
28 U.S.C. § 2254(d)(1).
4
Simmons v. United States, 390 U.S. 377 (1968).
5
United States v. Jackson, 390 U.S. 570 (1968).
6
Simmons, 390 U.S. at 381.
7
Jackson, 390 U.S. at 581.
8
In Joseph Heller’s World War II novel, Yossarian tries to avoid having
to fly any more dangerous combat missions by claiming that he is crazy.
The doctor explains to him that only a crazy person would willingly fly
combat missions after a lot of close calls, but rational concern for his own
safety proves that a person is not crazy. So, anyone who asks to be
relieved from flying more combat missions because he is crazy can’t be
relieved, since his rational request proves he isn’t crazy. “That’s some
catch, that Catch-22,” acknowledges Yossarian. Joseph Heller, Catch-22
at 46-47 (Dell ed. 1962) (1955).
3492 STUARD v. STEWART
because he has not demonstrated a constitutional right that he
was compelled to forfeit. Stuard suggests that he was com-
pelled to forfeit his right to the effective assistance of counsel,
but offers no argument, no evidence, and no authority to sat-
isfy either the deficient performance prong or the prejudice
prong of Strickland v. Washington.9 All the record shows is
that the prosecutor, not defense counsel, thought that to pre-
serve her record from challenge it would be desirable to give
defense counsel more time. Defense counsel said he would
have liked more time to do more interviews of detectives
whose reports he had read, and to spend more time examining
the real evidence he had looked at in the prosecutor’s office.
That is a far cry from acting “outside the wide range of pro-
fessionally competent assistance.”10 Stuard makes no attempt
to fit his attorney’s performance within the “ineffective assis-
tance” category delineated by Strickland, and does not cite the
case as one that the state court acted contrary to or unreason-
ably applied.
[2] Likewise, Stuard does not attempt to show that he could
have obtained more preparation from his busy lawyer only by
staying in jail past the time when the Sixth Amendment would
entitle him to trial. All he shows is that, to get the additional
time that the prosecutor, the judge, and his lawyer would have
liked the defense to have, he would have had to waive his
right to the speedy trial deadline provided in the Arizona court
rule.11
9
Strickland v. Washington, 466 U.S. 668 (1984).
10
Id. at 690.
11
Ariz. R. Crim. P. 8.2(b) states that:
Every person held in custody in this state on a criminal charge
shall be tried by the court having jurisdiction of the offense
within 120 days from the date of the person’s initial appearance
before a magistrate on the complaint, indictment or information,
or within 90 days from the date of the person’s arraignment
before the trial court, whichever is the lesser.
STUARD v. STEWART 3493
[3] Though the rule and the Sixth Amendment both contain
the right to a “speedy trial,” they mean different things. The
constitutional rule imposes a flexible limit that is far longer
than the Arizona rule in most or all cases. The Supreme Court
in Barker v. Wingo held that “we cannot definitely say how
long is too long in a system where justice is supposed to be
swift but deliberate.”12 In United States v. Aguirre,13 we held
that “a five year delay is long enough to trigger a further
look,” but concluded that even the five-year delay in that case
did not deprive the defendant of his constitutional right to a
speedy trial when all the Barker v. Wingo factors were bal-
anced.14
[4] Stuard was going to trial three months after the indict-
ment, and had the power in his own hands to delay his trial
for another month or two to give his lawyer more time to pre-
pare. The extra time would not even get his trial past the first
Barker v. Wingo factor of an “uncommonly long” delay,15 and
Stuard presents no argument for any of the factors. The con-
stitutional right to a speedy trial was not even implicated in
this case, just a state rule with the same name.
[5] The Supreme Court said in McGautha v. California16
12
Barker v. Wingo, 407 U.S. 514, 521 (1972).
13
United States v. Aguirre, 994 F.2d 1454, 1457 (1993).
14
The factors to consider are:
[1] whether delay before trial was uncommonly long, [2] whether
the government or the defendant is more to blame for the delay,
[3] whether, in due course, the defendant asserted his right to a
speedy trial, and [4] whether he suffered prejudice as the delay’s
result [sic].
Aguirre, 994 F.2d at 1455 n.1 (citing Doggett v. United States, 505 U.S.
647, 657 (1992), and Barker, 407 U.S. at 530) (brackets and numbering
in original).
15
Doggett, 505 U.S. at 651 (citing Barker, 407 U.S. at 530).
16
McGautha v. California, 402 U.S. 183 (1971), vacated on other
grounds, 408 U.S. 941 (1972).
3494 STUARD v. STEWART
that “[t]he criminal process . . . is replete with situations
requiring the making of difficult judgments as to which
course to follow. Although a defendant may have a right, even
of constitutional dimensions, to follow whichever course he
chooses, the Constitution does not by that token always forbid
requiring him to choose.”17 Far from showing that he was
unconstitutionally forced into foregoing one constitutional
right for another, Stuard has not shown that he gave up any
constitutional right at all, or that any constitutional right was
even at stake. He merely was faced with a choice between
giving up one advantage for another. Simmons and Jackson do
not entitle a defendant to obtain all possible advantages where
giving up one is necessary to obtaining the other. Even had
there been a serious claim to ineffective assistance of counsel,
because trial on the consolidated cases came only ten days
after the consolidation, there was no constitutional right to a
speedy trial that had to be given up to avoid ineffectiveness
of counsel.
The Seventh Circuit decided a similar claim similarly, in
United States v. Ashimi.18 About the only distinction is that
Ashimi called his problem a “Hobson’s Choice”19 instead of
a Catch-22. Ashimi holds that Simmons is not violated when
a defendant is forced to choose between a statutory right and
a constitutional right.20
17
Id. at 213 (internal citation and quotation omitted). Though McGautha
was later vacated in part in light of Furman v. Georgia, 408 U.S. 238(1972), the Supreme Court and this court have continued to rely on the
quoted passage above. See Bonin v. Calderon, 59 F.3d 815, 839-40 (9th
Cir. 1995) (holding that the reasoning of McGautha was controlling in the
case before it).
18
United States v. Ashimi, 932 F.2d 643 (7th Cir. 1991).
19
Tobias Hobson supposedly rented out horses in Cambridge, and told
customers that their choice was to take the horse nearest the stable door
or take no horse at all. 3 The Oxford English Dictionary 151 (2d ed.
1989).
20
Ashimi, 932 F.3d at 647-48.
STUARD v. STEWART 3495
[6] Not all choices are Catch-22s. A compulsion to choose
between two advantages, where the compulsion does not
force the defendant to forfeit any constitutional entitlements,
is not contrary to or an unreasonable application of Simmons
and Jackson.
AFFIRMED.