Noe v. Anderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

______________________________

No.95-60803
______________________________

HERWIN NOE,

Petitioner-Appellant,

versus

JAMES V. ANDERSON,
SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellee.

____________________________________________

Appeal From the United States District Court
for the Southern District of Mississippi
3:95-CV-426WS
____________________________________________

January 6, 1997

Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Herwin Noe appeals from the district

court’s dismissal of his Petition for Writ of Habeas Corpus filed

pursuant to 28 U.S.C. § 2254. For the reasons that follow, we

*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
affirm the district court’s dismissal of the petition.

I

FACTS AND PROCEEDINGS

Herwin Noe was convicted on two counts of aggravated assault

in the Circuit Court of Hinds County, Mississippi, First Judicial

District, on November 8, 1990 and the next day received a twenty

year sentence for each count, to run consecutively with each other

and with a life sentence for murder received in another case. The

facts adduced at trial upon which these convictions were based are

fully described in the Mississippi Supreme Court opinion that

decided Noe’s direct appeal.2 For purposes of this opinion, it

will suffice that: (1) Noe, a drug dealer in Jackson, Mississippi,

was engaged in a sale of crack cocaine to two individuals, Willie

Jones and Sammie Tate, who upon receiving the contraband, fled

without paying; (2) Noe subsequently located Jones and Tate and

shot them while they were seated, defenseless, in a car; and (3)

both victim Tate and a drug runner for Noe, Russell Loveless,

offered eyewitness identifications of Noe as the assailant.

Noe appealed his conviction and sentence to the Mississippi

Supreme Court, arguing that the trial court erred in (1) overruling

his pre-trial Motions to Dismiss for violation of his right to a

speedy trial under the Mississippi and United States Constitutions,

and (2) overruling his Motion for Directed Verdict and Motion for

2
Noe v. State, 628 So.2d 1368 (Miss. 1993).

2
a New Trial or Judgment Notwithstanding the Verdict. The

Mississippi Supreme Court affirmed Noe’s conviction and sentence in

December 1993.3

Noe then filed in the Mississippi Supreme Court an Application

for Post-Conviction Relief pursuant to the Mississippi Uniform

Post-Conviction Relief Act.4 In addition to reurging the same two

claims asserted in his direct appeal, Noe also alleged numerous

other constitutional violations, most of which were subsumed under

a general allegation that he received ineffective assistance of

counsel. The Mississippi Supreme Court denied Noe’s claims finding

that (1) they were procedurally barred from consideration under

Miss. Code Ann. § 99-39-21, (2) they failed to present a

substantial showing of the denial of a state or federal right as

required by Miss. Code Ann. § 99-39-27, and (3) Noe failed to show

that he was denied effective assistance of counsel.

Noe filed the instant pro se Petition for Writ of Habeas

Corpus in federal district court pursuant to 28 U.S.C. § 2254 in

June 1995, raising the same sixteen claims he asserted in his state

post-conviction relief application. The Respondent-Appellee

Raymond Roberts, Superintendent, Mississippi State Penitentiary,5

3
Id.
4
Miss. Code Ann. § 99-39-1 et seq.
5
Noe’s petition actually names Edward Hargett,
Superintendent, Mississippi State Penitentiary, as the Respondent.
Both James Anderson, the Respondent named in the caption, and
Roberts, we presume, are Hargett’s successors.

3
answered briefly asserting only that (1) petitioner’s claims are

precluded from consideration by virtue of their having been

rejected by the Mississippi Supreme Court on adequate and

independent state law grounds, and (2) his claims are

unmeritorious. A magistrate judge considered the matter and

entered a Report and Recommendation, proposing that Noe’s petition

be denied. With regard to the procedural bar defense raised by the

Respondent, the magistrate judge found that (1) Noe’s claims were

procedurally barred under Mississippi law, (2) he had shown neither

cause for his failure to raise the issues on direct appeal nor

resulting prejudice, and (3) he had not demonstrated that the

federal court’s failure to consider the defaulted claims would

result in a fundamental miscarriage of justice. Proceeding in the

alternative, the magistrate judge examined the issues that bore on

Noe’s claim of ineffective assistance of counsel and determined

that none evidenced either sufficiently deficient performance or

resulting prejudice under the demanding standards of Strickland v.

Washington.6 Finally, the magistrate reviewed the two remaining

grounds that were not deemed procedurally barred but were not

related to Noe’s ineffective counsel claim and determined that Noe

was not entitled to relief on these grounds either.

The district court adopted the magistrate judge’s Report and

Recommendation over Noe’s objections and dismissed his habeas

6
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

4
petition. Noe timely filed a notice of appeal from the district

court order and filed a motion for a certificate of probable cause

(CPC) which was denied by the district court. We granted Noe a CPC

on April 23, 1996.

II

ANALYSIS

On appeal, Noe makes essentially two arguments. First, he

contends that the district court incorrectly determined that his

claims are procedurally barred by an adequate and independent state

law ground because the Mississippi Supreme Court has not strictly

or regularly applied the procedural bar found in Miss. Code Ann.

99-39-21. Second, he argues that the district court erred in

finding that he is not entitled to relief on the merits of his

claims. Although we agree with Noe that the district court erred

in its determination concerning the applicability of Mississippi’s

procedural bar to his ineffective assistance of counsel claims, we

nevertheless affirm the district court’s dismissal of his petition,

holding that (1) Noe’s other waived claims, which are unrelated to

ineffective counsel, are procedurally barred, and (2) Noe is not

entitled to relief on the merits of his remaining unwaived and

unbarred claims, specifically, his ineffective assistance of

counsel claim, his sufficiency of the evidence claim, and his

speedy trial claim.

1. STANDARD OF REVIEW

5
 We have recently held that the newly enacted Amended Standard

Procedures of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA)7 are immediately applicable to all pending, non-

capital habeas petitions.8 In reviewing the proceedings of

petitioners in state custody, we therefore employ the following

standards of review. First, we shall, just as we always have,

accord state court factual findings a presumption of correctness.9

Furthermore, a writ of habeas corpus may be granted only when a

state court’s application of clearly established federal law to the

specific facts of a case is “unreasonable,”10 i.e., when “a state

court decision is so clearly incorrect that it would not be

debatable among reasonable jurists.”11 Finally, our review of a

district court’s denial of a federal habeas petition based on a

state procedural ground remains unchanged by the AEDPA; it presents

a legal question which we review de novo.12

2. APPLICATION OF MISSISSIPPI’S DIRECT APPEAL BAR

7
AEDPA §§ 101-106, Pub. L. No. 104-132, Sec. 101-106, 110
Stat. 1214, 12-14-21 (1996), codified at, 28 U.S.C. §§ 2241-2255.
8
Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996);
Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996).
9
28 U.S.C. § 2254(e)(1) (1996). See also, Amos v. Scott, 61
F.3d 333, 337-38 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct.
557, 133 L.Ed.2d 458 (1995).
10
28 U.S.C. § 2254(d) (1996).
11
Drinkard, 97 F.3d at 769.
12
Amos, 61 F.3d at 338.

6
 Under the now well-established procedural default doctrine, a

federal court may not review a state prisoner’s federal habeas

claim when the state has rejected that claim as defaulted pursuant

to an adequate and independent state procedural rule, unless the

petitioner can demonstrate cause for the default and resulting

actual prejudice or can demonstrate that failure to consider the

claim will result in a fundamental miscarriage of justice.13 In

this case, the Mississippi Supreme Court appeared to reject Noe’s

claim on the basis of just such a procedural rule when it held that

Noe’s claims are “barred from consideration by Miss. Code Ann. §99-

39-21 of the Mississippi Uniform Post-Conviction Act.”14 Section

99-39-21(1) prevents, inter alia, a convicted defendant from

raising issues in collateral proceedings that he did not raise on

direct appeal.15 Here, Noe failed to raise on direct appeal all but

13
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
2565, 115 L.Ed.2d 640 (1991); Martin v. Maxey, 98 F.3d 844, 847
(5th Cir. 1996).
14
As mentioned above, the Mississippi Supreme Court also
dismissed Noe’s claims because it found that they “fail[ed] to
present a substantial showing of the denial of a state or federal
right as required by Miss. Code Ann. § 99-39-27.” Although
Respondent characterizes this reason for dismissal as another
adequate and independent state ground, dismissal under section 99-
39-27 clearly represents an evaluation, however summary, of the
merits of petitioner’s claim. It therefore cannot be addressed
under the procedural default doctrine and is clearly not a ground
“independent” of the merits of Noe’s claim that he is being held
“in custody in violation of the Constitution or laws . . . of the
United States.” 28 U.S.C. § 2254(a).
15
Section 99-39-21(1) provides as follows:
Failure by a prisoner to raise objections, defenses,
claims, questions, issues or errors either in fact or law

7
two of the claims raised in his identical state and federal habeas

petitions, and thus the Mississippi Supreme Court’s application of

the state’s direct appeal bar would seem to be appropriate.

Another axiom of the procedural default doctrine, however, is

that a state procedural ground will not be “adequate,” and thus

will not bar consideration of an issue, if the bar is not

“‘strictly or regularly’ applied by the state to the ‘vast majority

of similar claims.’”16 Relying on a line of Fifth Circuit decisions

in which we noted that there was a time window during which the

Mississippi Supreme Court did not strictly or regularly apply the

direct appeal bar of §99-39-21 to claims of ineffective assistance

of counsel asserted for the first time in collateral proceedings,17

Noe argues that the court’s use of the bar was therefore not

“adequate” in his case. Respondent counters that the Mississippi

Supreme Court has applied the provisions of §99-39-21 over the last

ten years to a wide variety of claims not raised at trial and on

direct appeal and thus invites us to declare any “window” of

which were capable of determination at trial and/on
direct appeal . . . shall constitute a waiver thereof and
shall be procedurally barred, but the court may upon a
showing of cause and actual prejudice grant relief from
the waiver.
16
Martin, 98 F.3d at 847 (quoting Amos, 61 F.3d at 339).
17
See Wilcher v. Hargett, 978 F.2d 872, 879 (5th Cir. 1992),
cert. denied, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993);
Smith v. Black, 904 F.2d 950, 976 n.8 (5th Cir. 1990), vacated on
other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609
(1992); Wheat v. Thigpen, 793 F.2d 621, 627 (5th Cir. 1986), cert.
denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987).

8
inconsistent application closed. Fortunately, we need not delve

too deeply into this question because we recently faced this

precise issue squarely.18

In Martin v. Maxey,19 we reviewed our previous statements on

this issue and noted that we have “yet to determine whether

Mississippi has begun to apply its direct appeal bar strictly and

regularly, and if so, when this application began.”20 We also

observed that “[a] state has failed to strictly and regularly apply

a procedural rule only when the state ‘clearly and unequivocally

excuse[s] the procedural default.”21 We further reasoned that any

exception to a state procedural bar rule is “claim specific;” that

is, for a petitioner to circumvent the state’s assertion of a

procedural bar, he must show that the state “fail[s] to apply the

rule to claims ‘identical or similar’ to the petitioner’s claim.”22

Finally, turning to the precise issue now before this panel (the

application of Mississippi’s direct appeal bar to ineffective

assistance of counsel claims), we concluded in Martin that “[u]nder

Mississippi law, the failure to raise an ineffective assistance of

counsel claim on direct review does not constitute a procedural bar

18
98 F.3d 844 (5th Cir. 1996).
19
Id.
20
Id. at 847.
21
Id. (quoting Amos, 61 F.3d at 342).
22
Id. at 847-48.

9
where . . . the litigant was represented by the same counsel at

trial and on direct appeal.”23 In the instant case, Noe was

represented by the same lawyer both at trial and on direct appeal.

Being thus precedentially bound by our holding in Martin, we

conclude that the district court clearly erred in dismissing Noe’s

claims of ineffective assistance of counsel as barred by an

adequate and independent state procedural rule.

Before determining whether Noe’s ineffective assistance of

counsel claims were properly dismissed on their merits, however, we

must first address whether Noe’s claims that were not related to

ineffective assistance of counsel and that were not raised on

direct appeal are procedurally waived or saved. Again in Martin,

we addressed this same issue in relation to another potentially

procedurally barred claim unrelated to ineffective counsel (there,

a speedy trial claim) and concluded that a petitioner must

“demonstrate that Mississippi’s direct appeal bar was not strictly

and directly applied near the time of his direct appeal to cases

23
Id. at 848 (emphasis added). We further note that even if
the Martin decision had not been published prior to this opinion,
we would have reached an identical conclusion based on our own
review of Mississippi Supreme Court jurisprudence. Compare Cole v,
State, 666 So.2d 767, 775 (Miss. 1995) (observing that when a
defendant is represented by same counsel at trial and on direct
appeal, a post-conviction proceeding represents his first
“meaningful opportunity” to present a claim of ineffective
assistance of counsel) with Moore v. State, 676 So.2d 244, 245
(Miss. 1996) (finding that when petitioner had separate counsel at
trial and on direct appeal, he had “meaningful opportunity” to
raise issue of ineffective trial counsel on direct appeal and thus
is procedurally barred from asserting for first time in collateral
proceeding that trial counsel was constitutionally deficient).

10
involving [claims unrelated to ineffective assistance of counsel]

raised for the first time in his post-conviction collateral

proceedings.”24 In the instant case, as in Martin, the Petitioner

has failed to make this showing with regard to his four claims that

are unrelated to his ineffective assistance of counsel claim and

that were raised for the first time on collateral review —— namely,

(1) discovery violations, (2) incomplete records, particularly the

trial court’s failure to transcribe closing arguments pursuant to

both parties’ agreement, (3) to the extent it is independent of his

ineffective counsel claim, a witness’s and the prosecutor’s

reference to another crime attributed to the petitioner, and (4)

failure of the trial court, sua sponte, to give a curative

instruction regarding that other crime testimony. In the absence

of any indication that the Mississippi Supreme Court has failed to

apply the state’s direct appeal bar to these types of claims, we

are convinced that the Mississippi Supreme Court’s application of

the bar to these four claims did constitute an adequate and

independent state procedural ground. Finally, as Noe has not

demonstrated that there was any objective, “external impediment

preventing counsel from constructing or raising the claim[s]”

waived on direct appeal that would constitute cause for his

procedural default,25 and, moreover, has not asserted that a

24
Martin, 98 F.3d at 849.
25
Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986). Although attorney error can theoretically

11
fundamental miscarriage of justice would result from a federal

court’s failure to consider these claims,26 we affirm the district

court’s dismissal of these claims as procedurally barred.

3. THE MERITS OF NOE’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In Martin, in which we were required to remand consideration

of the petitioner’s ineffective assistance of counsel claim to the

district court because it had only considered that claim to the

extent it bore on whether there was cause to excuse the

petitioner’s procedural default of that very claim. Here, however,

the district court did address, albeit in the alternative, the

substance of Noe’s ineffective assistance of counsel claims in

their own right and held under the familiar two-step analysis

established by the Supreme Court in Strickland v. Washington that

they lacked merit.27 We shall therefore review the district court’s

dismissal of these claims on their merits just as we would any

other summary judgment dismissal —— that is, we review the district

court’s decision de novo.

To prevail on an ineffective assistance of counsel claim, a

petitioner must demonstrate (1) that his counsel was deficient,

serve as cause for a procedural default, Id. at 488, a habeas
petitioner must establish that the error was constitutionally
deficient under the demanding standard of Strickland, Id., a
showing that Noe does not make with regard to his defense counsel’s
decision not to raise every conceivable constitutional violation in
his direct appeal.
26
Martin, 98 F.3d at 849.
27
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

12
i.e., that counsel’s performance was not objectively reasonable,

and (2) that the deficient performance prejudiced the petitioner so

as to deprive him of a fair trial.28 As the district court

observed, the objective reasonableness standard by which counsel’s

performance is judged is “highly deferential;” accordingly, there

is a strong presumption that counsel’s conduct “falls within the

wide range of reasonable professional conduct” and that “the

challenged action ‘might be considered sound trial strategy’”29 To

satisfy the prejudice requirement, a petitioner must show that but

for counsel’s errors, there is a reasonable probability that the

result of the proceeding would have been different.30 Finally, both

prongs of the Strickland test must be satisfied for an ineffective

assistance of counsel claim to merit relief; failure to satisfy

either one ends the inquiry.31

In the instant case, Noe asserts a variety of grounds for his

general ineffective assistance of counsel claim. We have carefully

reviewed the record and both parties’ briefs on this issue and have

reached the conclusion that the district court reached the correct

result in finding that Noe is not entitled to relief on any of

these grounds.

28
466 U.S. at 687-88.
29
Id. at 689 (citation omitted).
30
Id. at 694.
31
Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994).

13
 Noe’s first major ground for asserting ineffective assistance

of counsel is that his attorney was deficient in not challenging

the admissibility of allegedly suggestive identification evidence

presented by the prosecution. We find that this ground lacks merit

primarily because neither of the two identifications of which Noe

complains —— one of the victims (Tate) testified that he recognized

the petitioner as his assailant when he saw the Petitioner’s

driver’s license photograph on television, and Noe’s drug runner,

Loveless, identified Noe as the perpetrator of the crime when he

was shown the Petitioner’s driver’s license by the police ——

appears unreliable or unduly suggestive in the totality of the

circumstances of this case.32 As the district court correctly

noted, the trial record does not indicate that anyone was induced

to identify anyone else. Further, the in-court identifications by

these two witnesses were entirely standard. Finally, our own

review of the records leaves us with the firm impression that

defense counsel adequately probed the circumstances and credibility

of these identifications in cross-examination. In sum, we agree

with the district court that there is no merit to Noe’s claims

regarding either out-of-court or in-court identifications and his

attorney’s conduct regarding these issues.

Noe’s other major ground for asserting ineffective assistance

of counsel is that his trial attorney failed to locate and call

32
Lowenfield v. Phelps, 817 F.2d 285, 297 (5th Cir. 1987),
aff’d, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).

14
witnesses whose names he purportedly provided and whom he claims

would have substantiated an alibi defense. The district court

properly found this assertion to be totally without merit, as Noe

specifically declined to provide an alibi defense in this trial and

failed to identify any alleged alibi witnesses in this case or

inform the court of the nature of their testimony.33 Furthermore,

we agree with the district court that even if Noe had offered an

alibi defense, the outcome of his trial would not have been

different in light of the aforementioned identifications of

Petitioner as the perpetrator of the shootings. Finally, we

conclude that defense counsel’s general decision to abandon an

alibi defense and concentrate on attempting to undermine the

identifications described above was certainly a reasonable trial

strategy and therefore cannot amount to ineffective assistance of

counsel.

Noe’s remaining grounds for arguing that his counsel’s

performance was constitutionally deficient are even weaker and

deserve even shorter shrift. First, Noe’s contention that his

attorney was ineffective for failing to secure an expert to testify

about the effect of drugs on the witnesses who identified him as

the shooter lacks merit because these witnesses’ drug-intoxicated

condition was adequately revealed to the jury, which simply chose

33
We note that Noe claims to have submitted names of these
witnesses to his attorney, but his citations to the record in
support of this assertion refer to the transcript of his murder
trial, not this trial.

15
to credit their testimony anyway. A counsel’s election not to call

an expert to provide potentially redundant elaboration on

undisputed facts of this nature cannot constitute ineffective

assistance of counsel.34

Noe also complains of his counsel’s failure to raise as an

issue alleged discovery violations by the prosecution. Although

the underlying allegations of discovery violations were waived by

Noe’s failure to raise them on direct appeal, we observe that Noe’s

trial counsel was aware of and pursued these matters at the trial

level and that, at bottom, these purported discovery violations

amounted to nothing more than conclusionary allegations that fail

to raise a constitutional issue.

Finally, in similar fashion, Noe complains of his counsel’s

failure to request a curative instruction regarding Loveless’

testimony that he was afraid of Noe because Noe had said he killed

a police officer in Florida. This complaint lacks merit for

several reasons. First, the testimony in question was offered to

establish why Loveless denied knowing Petitioner when he was

initially contacted by the police, not to prove Noe’s bad

character; consequently, it was not necessarily inadmissible. In

any event, Noe’s counsel did object to this testimony and his

34
McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986) (trial
counsel’s decision not to introduce redundant psychiatric report
was presumptively reasonable decision in light of substantial
direct testimony counsel had elicited concerning defendant’s odd
behavior and paranoia).

16
objection was sustained by the trial court. Noe’s counsel’s

failure to request a jury instruction given his successful

objection could well represent a reasonable tactical decision not

to draw further attention to this unflattering testimony. Finally,

even assuming that defense counsel’s failure to request the jury

instruction was deficient, such an omission was not such a

“fundamental defect” that it would deprive Noe of a fair trial or

raise a reasonable probability that the outcome of this trial would

have been different.35

In sum, we hold that Noe has neither established that his

counsel’s performance was outside the “wide range of reasonable

professional assistance” so as to be constitutionally deficient,

nor shown that such minor errors as might have occurred were so

fundamental as to deprive Noe of a fair trial.36 Accordingly, the

district court properly dismissed Noe’s ineffective assistance of

counsel claim as lacking merit.

4. UNWAIVED CLAIMS: SUFFICIENCY OF THE EVIDENCE AND SPEEDY TRIAL

We finally address the two claims that Petitioner has raised

continually since his trial. The first of these claims is that,

because of numerous inconsistencies in the record, there was

insufficient evidence to support the jury’s verdict and therefore

Noe is entitled to a judgment notwithstanding the verdict. This

35
Williams v. Lockart, 736 F.2d 1264, 1267 (5th Cir. 1984).
36
Strickland, 466 U.S. at 689 & 687.

17
claim was considered in detail in Noe’s direct appeal to the

Mississippi Supreme Court, which found “unequivocal, credible

evidence” that Noe “pursued, shot, and wounded,” two individuals

who had absconded with cocaine, and further found that there was no

evidence that Noe acted in self-defense.37 After closely reviewing

the evidence adduced at trial and viewing it in the light most

favorable to the prosecution, we find beyond peradventure that the

evidence was sufficient to justify any rational trier of fact’s

finding proof of guilt beyond a reasonable doubt as to each element

of the offenses charged.38

Noe’s second unwaived claim is that he was denied his

constitutional right to a speedy trial. As the district court

noted, however, Noe was arrested and charged at the same time with

different offenses arising from two separate incidents —— first,

murder and, second, the aggravated assault offenses under

consideration in this petition. Further, the two resulting

criminal cases were prosecuted simultaneously, with the exception

of one additional continuance granted to the prosecution so that

petitioner’s murder trial could precede the aggravated assault

trial. Thus, when the Mississippi Supreme Court addressed Noe’s

speedy trial claim in the context of the direct appeal of his

murder conviction, its findings were applicable to Noe’s speedy

37
Noe v. State, 628 So.2d 1368, 1369 (Miss. 1993).
38
Jackson v. Virginia, 443 U.S. 307, 319-324, 99 S.Ct. 2781,
61 L.Ed. 560 (1979).

18
trial claim here, in as much as the pertinent facts are almost

entirely the same.39

Reaching the merits of this claim, we agree with both the

district court and the Mississippi Supreme Court that Noe’s

constitutional right to a speedy trial was not violated in light of

the balancing test set forth by the Supreme Court in Barker v.

Wingo.40 Under that test four factors must be considered: (1) the

length of the delay, (2) the reason for the delay, (3) whether the

defendant has asserted his right to a speedy trial, and (4) whether

the defendant was prejudiced by the delay.41 Although the length

of the delay in this case was found by both the Mississippi Supreme

Court and the district court to be presumptively prejudicial,42 none

of the other factors weigh in Noe’s favor. First, we observe that

two of the most significant delays were caused by the petitioner

himself —— namely the continuance sought by the petitioner’s first

attorney and the delay caused by that initial attorney’s subsequent

withdrawal from the case due to strategic and personal conflicts

with Noe. Perhaps even more importantly, Noe did not affirmatively

assert his right to a speedy trial until quite late in the day ——

after the first continuance and his first attorney’s withdrawal had

39
See Noe v. State, 616 So.2d 298, 300-302 (Miss. 1993).
40
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
41
Barker, 407 U.S. at 530.
42
Noe, 616 So.2d at 300-301.

19
occurred. Finally, petitioner has failed to present any specific

evidence of how he was prejudiced by the delays that occurred.

Given these considerations, we cannot say that the Mississippi

Supreme Court’s application of the well-established Barker factors

to the facts of Noe’s speedy trial claim was unreasonable under the

new Amended Standard Procedures of the AEDPA.43 Accordingly,

petitioner is not entitled to relief on this final ground.

5. EVIDENTIARY HEARING

As a final note, we briefly address Noe’s request, which was

denied by the district court, for an evidentiary hearing so that he

could “vividly display his claims.” As Respondent notes, an

evidentiary hearing in a federal habeas proceeding is now generally

proscribed by the AEDPA except when a petitioner can demonstrate

cause and actual innocence as provided under 28 U.S.C. §2254(e)(2)

(1996). Noe has not made such a showing; therefore the district

court properly denied Noe’s request for an evidentiary hearing.

III

CONCLUSION

For the reasons fully set forth above, the district court’s

dismissal of Noe’s Petition for a Writ of Habeas Corpus is

affirmed.

AFFIRMED.

43
28 U.S.C. § 2254(d); Drinkard, 97 F.3d at 769.

20