Michael Mann v. Jeffrey Beard ( 2016 )

FILED
NOT FOR PUBLICATION
APR 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MANN No. 15-55147
Petitioner - Appellant, D.C. No. 8:13-cv-0560 DOC-
(MAN)
v.
JEFFREY BEARD, et al., MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California, Santa Ana
David O. Carter, District Judge, Presiding
Argued and submitted April 5, 2016
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,** District Judge.
Michael Mann (“Appellant”) appeals the district court’s denial of his
petition for a writ of habeas corpus for an alleged violation of his Sixth
Amendment right to a speedy trial. The alleged violation arises out of a state court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
conviction in May 2008 for an arrest that occurred in December 2001. We have
jurisdiction under 28 U.S.C. § 2253. We affirm.
Appellant contends that his Sixth Amendment right to a speedy trial attached
upon his initial state arrest for assault of a police officer and possession of a
controlled substance, because he was held in state custody after arrest until his
arraignment at an initial hearing two days later, when he was released on bond and
ordered to return to court for a preliminary hearing. See United States v. Marion,
404 U.S. 307, 320 (1971) (holding that the protections of the Sixth Amendment
speedy trial provision attach upon “the actual restraints imposed by arrest and
holding to answer a criminal charge”). However, between Appellant’s arrest and
preliminary hearing in state court, federal authorities arrested and held him on
separate drug charges. Appellant missed his preliminary state court hearing
because he was in federal custody, and the state court exonerated his bond, but
issued a warrant for his failure to appear.
The Supreme Court holds that “when no indictment [or information] is
outstanding, only the ‘actual restraints imposed by arrest and holding to answer a
criminal charge . . . engage the protections of the speedy trial provision of the Sixth
Amendment.’” United States v. Loud Hawk, 474 U.S. 302, 311 (1986) (ellipsis in
original) (quoting Marion, 404 U.S. at 320). When the actual restraints are
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removed and “defendants are not incarcerated or subjected to other substantial
restrictions on their liberty, a court should not weigh that time towards a claim
under the Speedy Trial Clause.” Id. at 312. In this case, Appellant was neither
under indictment nor subject to bail during the relevant time period from February
2002 until February 2008. In light of these facts, it was neither contrary to clearly
established Supreme Court precedent nor an unreasonable application of such law
for the California Court of Appeal to hold that Appellant’s federal speedy trial
right was not violated.
Appellant next contends that, despite the exoneration of the bond, California
retained its hold on him because it issued an arrest warrant for his failure to appear
at his 2002 preliminary hearing. As the district court noted, Appellant’s liberty
was not restrained by the state after the bond’s exoneration and issuance of the
arrest warrant, but by another sovereign (the federal government) during the
relevant time period. Additionally, due to Appellant’s federal custody, the failure-
to-appear warrant arguably did not subject Appellant to the same degree of loss of
employment or damage to reputation as compared to a person not in custody.
Given these circumstances, “fairminded jurists could disagree” whether the
issuance of a failure-to-appear warrant constituted the actual restraint necessary to
keep a defendant’s Sixth Amendment right to a speedy trial attached. See
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Harrington v. Richter, 562 U.S. 86, 101 (2011) (federal habeas relief is precluded
“so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision”).
Finally, Appellant asserts that the California Court of Appeal erred in
holding that the December 2001 felony complaint filed against him did not trigger
the protections of the speedy trial right under the Sixth Amendment. The Supreme
Court has not decided whether the filing of a felony complaint is sufficiently
analogous to an indictment or information to trigger the protections of the Sixth
Amendment Speedy Trial Clause. Indeed, this circuit is split on whether the filing
of a felony complaint triggers the right. Compare Northern v. United States, 455
F.2d 427, 429 (9th Cir. 1972) (per curiam) (felony complaint triggers speedy trial
protection), and United States v. Terrack, 515 F.2d 558, 559 (9th Cir. 1975)
(same), with Favors v. Eyman, 466 F.2d 1325, 1327!28 (9th Cir. 1972) (felony
complaint does not trigger speedy trial right), and Arnold v. McCarthy, 566 F.2d
1325, 1382 (9th Cir. 1978) (same).
Because the Supreme Court has not addressed the question whether a felony
complaint causes the Sixth Amendment Speedy Trial Clause to attach, the
California Court of Appeal’s holding was not contrary to clearly established
federal law. Further, the state court holding was not an unreasonable application of
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federal law. Indeed, in light of this circuit’s own split, fairminded jurists could
disagree whether the Orange County District Attorney’s filing of a felony
complaint against Appellant triggered the protections of the Sixth Amendment.
Given the heightened standard of review required by 28 U.S.C. § 2254, we must
defer to the California Court of Appeal’s conclusion that the felony complaint did
not cause Appellant’s Sixth Amendment s5peedy trial right to attach.
AFFIRMED.
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