Jackson v. Ray

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 6 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MICHAEL SHANE JACKSON,

Petitioner - Appellant,

v. No. 03-6053

CHARLES RAY, Warden, Davis
Correctional Facility,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CIV-01-1778-C)

Submitted on the briefs:

W.A. Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper,
Assistant Attorney General, Oklahoma City, Oklahoma, for the Respondent-
Appellee.

Thomas D. McCormick, Oklahoma City, Oklahoma, for the Petitioner-Appellant.

Before TACHA, Chief Circuit Judge, BRISCOE, Circuit Judge, and
LUNGSTRUM, Chief District Judge. †

†
Hon. John W. Lungstrum, Chief District Judge of the United States
District Court for the District of Kansas, sitting by designation.
TACHA, Chief Circuit Judge.

Petitioner-Appellant Michael Shane Jackson filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, alleging that a four and one-third-

year delay between the filing of the information against him and his trial violated

his Sixth Amendment right to a speedy trial. The District Court denied Mr.

Jackson’s petition for failing to establish prejudice. We take jurisdiction under

28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

The State of Oklahoma incarcerated Mr. Jackson on a robbery conviction

on September 12, 1995. Two weeks later, on September 27, 1995, the State

issued an information and arrest warrant against Mr. Jackson, charging him with

selling LSD. In February 1998, he was released from his robbery conviction on

probation. While on probation, Mr. Jackson was enrolled in community college

and employed.

The State took no action to enforce the LSD information during Mr.

Jackson’s incarceration for the robbery conviction. Rather, on April 13, 1998,

approximately two months after his release on probation, the State executed the

1995 LSD arrest warrant. Because Mr. Jackson could not pay bond, he was held

in pretrial detention from April 1998 until January 24, 2000, the date of his trial.

During this time, Mr. Jackson’s trial was continued numerous times. As the

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State now concedes, the record offers no explanation for these continuances, nor

does it reveal who requested them. On May 18, 1999, Mr. Jackson filed a pro se

motion in which he asserted, among other things, his Sixth Amendment right to a

speedy trial. The State trial court did not address this motion until the day of

trial, more than eight months after its filing. At that time, the court denied the

motion, stating, “while I understand that [Mr. Jackson] feels that there are some

fairness issues, . . . those are not legal issues, they do not have legal merit.”

At trial, Mr. Jackson presented an entrapment defense, claiming that Jason

Brown, a police informant, entrapped him. Mr. Brown, however, committed

suicide in 1997, well before Mr. Jackson knew of the pending drug trafficking

information. In lieu of Mr. Brown’s testimony, Mr. Jackson himself testified that

Mr. Brown entrapped him. During the course of this testimony, Mr. Jackson also

stated that he was a drug addict at the time he sold the LSD. The state court

properly instructed the jury that, if Mr. Jackson was ready and willing to sell LSD

despite Mr. Brown’s actions, then Mr. Jackson’s entrapment defense should fail.

The jury entered a verdict against Mr. Jackson, and the state trial court sentenced

him to a prison term of twenty-one years.

Mr. Jackson appealed to the Oklahoma Court of Criminal Appeals

(“OCCA”), raising, inter alia, the speedy trial claim. Over the vigorous dissent of

Judge Chapel, the OCCA summarily dismissed the speedy trial claim. Mr.

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Jackson then sought habeas relief from the federal courts. His petition was

referred to a federal Magistrate Judge who found the OCCA majority opinion

factually incorrect and legally erroneous. Nevertheless, the Magistrate Judge

recommended denial of habeas relief after finding that Mr. Jackson’s defense was

not prejudiced by the delay. Similarly, the District Court, rehearing the habeas

claim de novo, held that Mr. Jackson’s defense was not prejudiced by the delay

because the substance of Mr. Brown’s potential testimony was speculative.

We granted Mr. Jackson a certificate of appealability on his speedy trial

claim pursuant to 28 U.S.C. § 2253(c) . Mr. Jackson filed a pro se brief in this

Court. We then appointed counsel for Mr. Jackson. After receiving the parties’

briefs, we ordered the case to oral argument and requested additional briefing

regarding the Supreme Court’s opinion in Doggett v. United States, 505 U.S. 647

(1992). We acquiesced to the parties’ joint request and unanimously determined

to submit this case without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir.

R. 34.1(G).

II. STANDARD OF REVIEW

In habeas cases, we review the federal district court’s legal conclusions de

novo, applying the same review of the state court decision as the district court.

Morris v. Burnett , 319 F.3d 1254, 1268 (10th Cir. 2003). We conduct an

independent review of the state record as well. Id. If, however, the district court

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made any independent factual findings outside the state record, we review those

findings for clear error. Id.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. 104-32, 110 Stat. 1214, governs this case. Pursuant to AEDPA, we must

defer to a state court decision adjudicated on the merits unless that decision: (1)

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) . . .

was based on an unreasonable determination of the facts in light of the evidence

presented at the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

Because the OCCA identified the appropriate legal principles in

determining whether Mr. Jackson was denied his right to a speedy trial, our

review is limited to whether the OCCA unreasonably applied those principles.

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas

court to grant the writ if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520

(2003) (internal quotations omitted). 1 A state court decision does not satisfy this

1
We note that the Supreme Court published its decision in Wiggins after
the completion of Mr. Jackson’s OCCA appeal. AEDPA “limit[s] our analysis to
the law as it was clearly established by [Supreme Court] precedents at the time of
the state court decision.” Wiggins, 539 U.S. at 520 (internal quotations omitted)
(continued...)

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standard if it is merely “ incorrect or erroneous. The state court’s application must

have been objectively unreasonable.” Id. at 520-21 (internal citation omitted). In

conducting an AEDPA analysis, we focus on the state court’s decision, not its

rationale. Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Our review,

then, consists of whether the OCCA’s denial of Mr. Jackson’s speedy trial claim

is objectively unreasonable in light of clearly established Supreme Court

precedent.

While we focus on the OCCA’s decision, we may nonetheless look to the

OCCA’s rationale to inform our review of the decision itself. In Wiggins, the

Court considered whether Maryland’s highest court unreasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), to defendant’s ineffective

assistance of counsel claim. 539 U.S. at 521. The Court, in conducting its

unreasonable-application analysis, reviewed both prongs of the ineffective

assistance test to determine whether the state court’s finding on each was contrary

to clearly established Supreme Court law, id. at 526-27, 535-36, or based upon

facts that were clearly and convincingly erroneous in light of the state court

1
(...continued)
(emphasis added). We cite Wiggins, however, not as an example of clearly
established law relating to the substance of the speedy trial claim, but for
guidance on the proper standards to apply on habeas review under AEDPA. See
id. at 522 (holding that a habeas court can cite Supreme Court precedent issued
after the relevant state court decision so long as it “made no new law in
resolving” the underlying claim).

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record, id. at 528 .

Following Wiggins, we conduct a similar review here. The Court, in

Barker v. Wingo, 407 U.S. 514 (1972) , provides a four-part balancing test for

speedy trial claims, which we discuss in more detail below. Because the OCCA’s

decision ultimately results from the balancing of these four factors, we cannot

decide whether the OCCA’s decision was objectively unreasonable without

considering the relevant factors and the balancing of these factors. Therefore, we

review the OCCA’s finding on each of these four factors for the limited purpose

of determining whether any finding is contrary to clearly established Supreme

Court precedent or based upon facts that are clearly and convincingly erroneous in

light of the state court record. Because speedy trial claims are subject to a

balancing test, the fact that the OCCA may have made a finding on one or more of

the factors contrary to clearly established Supreme Court precedent is insufficient

to grant habeas relief. Habeas relief is only available if there is no possible

balancing of the factors that both supports the OCCA’s decision and is not

contrary to clearly established Supreme Court precedent.

III. DISCUSSION

Mr. Jackson argues that the four and one-third-year delay between the filing

of the information against him and his date of conviction constitutes a violation of

his Sixth Amendment right to a speedy trial. The Sixth Amendment to the

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Constitution of the United States provides: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy . . . trial . . . .” The Fourteenth

Amendment incorporates the right to a speedy trial against the states. Klopfer v.

North Carolina , 386 U.S. 213, 223-24 (1967).

The OCCA, in dismissing Mr. Jackson’s speedy trial claim, reasoned in

full:

[W]e find that Appellant has not shown how he was prejudiced by the
delays, nor did the record reflect that any prejudice resulted. Stohler
v. State, 751 P.2d 1087, 1089 (Okla. Ct. Crim. App. 1988).
Furthermore, Appellant has not shown that he timely and sufficiently
raised the issue at trial nor has he shown that the reasons for the delay
were solely attributable to the State. Jackson, F-2000-387, at 2.

The OCCA cited Stohler, which refers to the Barker v. Wingo, 407 U.S. 514

(1972) , test; hence it identified the appropriate legal principles for adjudicating

this claim.

The Supreme Court, in Barker, established the analysis for Sixth

Amendment speedy trial cases. A Sixth Amendment speedy trial claim is assessed

by balancing: (1) the length of the delay, (2) the reason for the delay, (3) whether

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

prejudiced the defendant. Id. at 530. None of these factors, taken by itself, is

“either a necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial. Rather, they are related factors and must be considered

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together with such other circumstances as may be relevant.” Id. at 533. 2

A. Length of Delay

The first factor of the Barker test—length of the delay—is actually a dual

inquiry. First, as a threshold matter, only if the delay is “presumptively

prejudicial” need we inquire into the remaining Barker factors. Barker , 407 U.S.

at 530. Second, “[i]f the accused makes this showing, the court must then

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.”

Doggett , 505 U.S. at 652.

In examining the first prong of the delay factor, the Supreme Court has

stated that “[d]epending on the nature of the charges, the lower courts have

generally found postaccusation delay ‘presumptively prejudicial’ at least as it

approaches one year.” Doggett , 505 U.S. at 652 n.1. The general rule is that the

2
In Barker, the Court characterized the right to a speedy trial as “a more
vague concept than other procedural rights,” which it approaches “on an ad hoc
basis.” Barker , 407 U.S. at 521, 530. Later rulings by the Court, however,
clearly establish that the four Barker factors are the definitive factors when
considering a speedy trial claim. See, e.g., Doggett v. United States, 505 U.S.
647, 651 (1992); United States v. Loud Hawk, 474 U.S. 302, 313-14 (1986);
United States v. MacDonald, 435 U.S. 850, 858 (1978). Indeed, since Barker, the
Court has never considered any other factor. In using the phrases “ad hoc” and
“[n]either necessary [n]or sufficient” the Barker Court merely emphasized that in
a particularly egregious case a defendant does not need to satisfy all four factors.
See, e.g., Moore v. Arizona, 414 U.S. 25, 27 (1973) (“Barker v. Wingo expressly
rejected the notion that an affirmative demonstration of prejudice was necessary
to prove a denial of the constitutional right to a speedy trial[.]”).

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speedy trial right attaches when the defendant is arrested or indicted, whichever

comes first. United States v. Marion, 404 U.S. 307, 320-21 (1971).

Here, the State filed its information, the functional equivalent of an

indictment, four and one-third years before bringing Mr. Jackson to trial. The

Magistrate Judge found, and we agree, that the four and one-third-year delay is

clearly sufficient to require consideration of the remaining Barker factors. See

Doggett , 505 U.S. at 652. The State agrees as well, stating that “the time to

measure ‘postaccusation delay’ in this case began to run on the date the

information was issued, September 27, 1995.”

Moreover, in considering the second part of the delay inquiry, we note a

four and one-third-year delay far exceeds the “bare minimum” for “judicial

examination of the claim.” Doggett , 505 U.S. at 652. We therefore agree with

the Magistrate Judge and weigh the delay factor in favor of Mr. Jackson.

B. Reason for the Delay

The reason for the delay is the second prong in the Barker analysis.

Barker , 407 U.S. at 530. The Supreme Court places the burden on the state to

provide an inculpable explanation for delays in speedy trial claims. Id. at 531

(focusing its evaluation of the delay on “the reason the government assigns to

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justify the delay”). 3
In this case, neither the State, Mr. Jackson, nor the record

itself offers explanations for the delays; but the OCCA concluded that Mr.

Jackson bore the burden and weighed the second Barker factor against him.

Jackson , F-2000-387, at 2. Placing the burden on Mr. Jackson, however, is

directly contrary to Barker . The OCCA therefore applied this Barker factor in an

objectively unreasonable manner. See Wiggins , 539 U.S. at 521. The State, not

Mr. Jackson, has the burden to show that the delay is justifiable.

Moreover, when the petitioner does not argue that the state deliberately

delayed his trial and the state does not argue that the petitioner caused the delay –

as occurs in this case – courts must conclude negligence on the part of the

government and weigh the second Barker factor moderately against the state. See

Doggett , 505 U.S. at 656-57; Barker , 407 U.S. at 531, 533-34; Strunk v. United

States , 412 U.S. 434, 436 (1973). The State concedes this point. “[I]t is clear

that when no such justification [for the delay] is offered that the factor is weighed

in favor of the defendant and against the State.” Finally, we note that the State’s

negligence is not mitigated by the fact that Mr. Jackson was incarcerated on a

3
Although we have yet to observe this in a published opinion, every circuit
court to address the question has held that Barker places the burden to explain the
delay on the State. See, e.g., McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir.
2003); United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999); Jones v.
Morris, 590 F.2d 684, 686 (7th Cir. 1979); Morris v. Wyrick, 516 F.2d 1387, 1390
(8th Cir. 1975); Georgiadis v. Superintendent, Eastern Correctional Facility, 450
F. Supp. 975, 980 (S.D.N.Y.), aff’d, 591 F.2d 1330 (2d Cir. 1978).

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previous charge for a portion of the delay. See Dickey v. Florida, 398 U.S. 30, 36

(1970) (finding a Sixth Amendment speedy trial violation notwithstanding the

State’s argument that petitioner was in federal and state custody during the entire

delay); Smith v. Hooey, 393 U.S. 374, 377 (1969) (there exists a constitutional

duty to try defendants on pending charges regardless of whether they are in

federal custody on unrelated charges).

Clearly established Supreme Court precedent, then, requires finding that the

State was negligent in bringing Mr. Jackson to trial and that this negligence

causes the second Barker factor to be weighed against the State. Moreover, “the

weight we assign to official negligence compounds over time as the presumption

of evidentiary prejudice grows. Thus, our toleration of such negligence varies

inversely with its protractedness.” Doggett, 505 U.S. at 657. Given the duration

of the delay in this case—four and one-third times longer than the “presumptively

prejudicial” period—clearly established Supreme Court precedent requires that

this Barker factor weighs even more heavily against the State than would occur

under a shorter negligent-delay scenario.

C. Assertion of the Speedy Trial Right

Because Mr. Jackson asserted his speedy trial claim before the state trial

court, the third Barker factor—whether the right to a speedy trial was asserted at

trial—weighs against the State. The OCCA found that Mr. Jackson “ha[d] not

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shown that he timely and sufficiently raised the [speedy trial] issue at trial.”

Jackson, F-2000-387, at 2; but see id. at 3 (Chapel, J., dissenting) (“[H]e timely

asserted his right to a speedy trial.”). Although federal courts presume that a

state court’s factual findings are correct unless rebutted by clear and convincing

evidence, 28 U.S.C. § 2254(e)(1), we agree with the Magistrate Judge that the

state court record clearly and convincingly establishes that: (1) Mr. Jackson filed

a pro se motion asserting his right to a speedy trial on May 18, 1999, which is in

the state court record and date stamped by the Oklahoma trial court; and (2) the

state trial court considered and denied the motion on January 24, 2000, before

conducting voir dire.

In Wiggins , the Court faced a similar issue. There, the Supreme Court

granted a writ of habeas corpus in part because the state appellate court relied on

a key factual finding that was clearly contradicted by the state court record. 539

U.S. at 528 (finding that “the [Maryland] court based its conclusion, in part, on a

clear factual error [which was] . . . , shown to be incorrect by ‘clear and

convincing evidence’” solely upon an examination of the state court record).

Similarly, the OCCA’s finding that Mr. Jackson failed to assert his Sixth

Amendment right at trial is rebutted by clear and convincing evidence found in

the state court record. See 28 U.S.C. § 2254(d)(2). Because clear and convincing

evidence in the state court record establishes that Mr. Jackson timely asserted his

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right to a speedy trial in the Oklahoma trial court, we must weigh this factor

against the State.

We recognize that, in general, the sooner a criminal defendant raises the

speedy trial issue, the more weight this factor lends to his claim. See Barker , 407

U.S. at 534-35. We will not fault a defendant, however, for failing to assert his

speedy trial right before learning of the pending information or indictment against

him. See Doggett , 505 U.S. at 654. Here, Mr. Jackson, appearing pro se, asserted

his speedy trial rights on May 6, 1999, approximately five months after the first

continuance of his trial date and some eight months prior to trial. The Magistrate

Judge found, and we agree, that “[t]here is no evidence that [Mr. Jackson] knew

about the arrest warrant prior to its execution. Likewise, there is no evidence that

any subsequent action, or inaction, by [Mr. Jackson] was contrary to his May,

1999, assertion of his right to a speedy trial.” Hence, Mr. Jackson timely filed his

motion.

D. Prejudice

The OCCA held that Mr. Jackson “has not shown how he was prejudiced by

the delays, nor did the record reflect that any prejudice resulted.” Jackson, F-

2000-387, at 2; but see id. at 5 (Chapel, J., dissenting) (“Brown’s testimony

would have been highly relevant to Jackson’s claim on entrapment. Jackson’s

defense was impaired by the delay.”). This fourth Barker factor, whether the

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delay prejudiced the petitioner, can be met in two ways: with or without a

particularized showing of prejudice. We address these mechanisms of

establishing prejudice in turn.

1. Without a Particularized Showing of Prejudice

In cases of extreme delay, criminal defendants need not present specific

evidence of prejudice. Instead, they may rely on the presumption of prejudice

created by the delay. Doggett, 505 U.S. at 655. Here, Mr. Jackson argues that the

state’s culpability for, and the length of, the four and one-third-year delay places

this case within the ambit of the Doggett rule. We disagree.

In Doggett, the Court held that a delay of eight and one-half years, of

which the government was responsible for approximately six years, relieved the

defendant of the need to make a particularized showing of prejudice. Id. at 657.

The Court held that “[w]hen the Government’s negligence thus causes delay six

times as long as that generally sufficient to trigger judicial review [i.e., six years],

and when the presumption of prejudice, albeit unspecified, is neither extenuated

as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is

entitled to relief.” Id. at 658. Here, because the delay is less than six years,

clearly established Supreme Court law does not require application of the Doggett

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rule. 4

2. Particularized Showing of Prejudice

We assess whether Mr. Jackson has made a particularized showing of

prejudice by considering the three interests that “the speedy trial right was

designed to protect”: (1) prevention of oppressive pretrial incarceration, (2)

minimization of the accused’s anxiety and concern, and (3) minimization of the

possibility that a delay will hinder the defense. Barker, 407 U.S. at 532.

Impairment of the defense is the most important interest. Id. Because the

seriousness of a post-accusation delay worsens when the wait is accompanied by

pretrial incarceration, oppressive pretrial incarceration is the second most

Doggett does not definitively determine whether a delay of less than six
4

years will ever relieve a defendant of the need to make a particularized showing
of prejudice. Other circuits, when applying Doggett in cases involving delays of
less than six years, have more clearly defined the minimum amount of delay
necessary to relieve a defendant of the need to make a particularized showing of
prejudice. See, e.g., United States v. Bergfeld, 280 F.3d 486, 489-91 (5th Cir.
2002) (holding that a delay of five years and three months was presumptively
prejudicial); United States v. Serna-Villarreal, 352 F.3d 225, 231-33 (5th Cir.
2003) (concluding that a three-year delay caused by governmental negligence did
not require dismissal of the indictment). We, however, have yet to apply
Doggett’s particularized-showing rule on direct appeal. Consequently, we have
not decided whether a delay shorter than six years can relieve a defendant of the
need to make a particularized showing of prejudice. Because we are currently
considering this question in the context of habeas review, our inquiry is limited to
determining whether this delay is contrary to clearly established Supreme Court
precedent. We, therefore, leave open the question whether a delay of less than six
years can relieve a defendant of the need to make a particularized showing of
prejudice until we have an opportunity to consider it on direct appeal.

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important factor. See id. at 533 (noting serious disadvantages caused by pretrial

incarceration). The burden of showing all types of prejudice lies with the

individual claiming the violation and the mere “possibility of prejudice is not

sufficient to support [the] position that . . . speedy trial rights [are] violated.”

United States v. Loud Hawk, 474 U.S. 302, 315 (1986).

Here, even though we construe Mr. Jackson’s pro se briefing liberally,

Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), Mr. Jackson did not

raise the issues of oppressive pretrial detention and increased anxiety below. As

the Magistrate Judge stated, “Petitioner notes, under Barker, the third interest — a

defense unhampered by delay — is the most important interest . . . . Petitioner’s

argument addresses only this element of prejudice.” Our inquiry, then, is limited

to the third interest under Barker, prejudice to the defense. See United States v.

Cervini, 379 F.3d 987, 994 n.5 (10th Cir. 2004).

Mr. Jackson argues that the OCCA’s decision finding his defense not

impaired was objectively unreasonable, because his key witness, Mr. Brown, died

before he knew about the pending information against him. Mr. Jackson argues

that Mr. Brown’s death constitutes obvious prejudice. See Barker, 407 U.S. at

532 (“If witnesses die or disappear during a delay, the prejudice is obvious.”); see

also Moore v. Arizona, 414 U.S. 25, 27 n.2 (1973) (quoting Barker). To the

extent that Mr. Jackson advocates a per se rule that the death of a witness during

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delay impairs the defense, we agree with the District Court and reject this

argument as inconsistent with Barker itself, see 407 U.S. at 532-33, and

unsupported by any lower court rulings applying Barker.

On the other hand, the question is much closer as to whether the unique

circumstances of this case caused Mr. Brown’s death to impair Mr. Jackson’s

defense. In arguing that the unavailability of a witness impaired the defense, a

defendant must “state[] with particularity what exculpatory testimony would have

been offered.” United States v. Tranakos, 911 F.2d 1422, 1429 (10th Cir. 1990)

(internal quotations, citations, and alterations omitted). The defendant must also

present evidence that the delay caused the witness’s unavailability. Gutierrez v.

Moriarty, 922 F.2d 1464, 1472 (10th Cir. 1991). Mr. Jackson satisfies both of

these criteria.

Despite the State’s contention that Mr. Jackson’s recounting of Mr.

Brown’s testimony is speculative, see Perez v. Sullivan, 793 F.2d 249, 257 (10th

Cir. 1986) (“Speculative allegations of injury are unpersuasive.”), we find that

Mr. Jackson set forth Mr. Brown’s probable testimony with sufficient clarity and

particularity to support his prejudice claim, see Tranakos, 911 F.2d at 1429. The

State relies on three cases to support its position: Tranakos, 911 F.2d at 1429,

United States v. Schlei, 122 F.3d 944, 988 (11th Cir. 1997), and United States v.

Neal, 27 F.3d 1035, 1043 (5th Cir. 1994). Although the unavailable witness died

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during the delay in all three cases, in every instance the accused knew of the

pending indictment before the witness died but took no steps to preserve

testimony. Id. The courts in those cases based their holdings in large part on the

fact that a defendant must take steps, when possible, to preserve testimony. See,

e.g., Neal, 27 F.3d at 1043 (“Moreover, [the defendant] has not explained why

neither he nor his attorney took steps to preserve the witnesses’ testimony for

trial.”). Here, however, Mr. Brown died before Mr. Jackson even learned of the

pending LSD information. Mr. Jackson was not, therefore, on notice of the need

to preserve testimony, nor did he have a realistic opportunity to do so.

Given this key distinction, we find the State’s “speculative argument”

misplaced. Initially, we note that the State does not contest that Mr. Brown was

in fact a police informant who associated with Mr. Jackson. Thus, there is no

allegation that Mr. Jackson is merely conjuring up potential witnesses. Also, in

the context of an entrapment defense, which generally involves only the alleged

entrapper and the accused, if the defendant learns of the indictment after the death

of the “entrapping” witness, the proffered testimony will necessarily be

speculative in the sense the State urges. If we adopted the State’s rule, we would

essentially foreclose speedy trial relief to every defendant who learns of the

indictment after a witness—who is the sole source of the relevant

testimony—dies, even if this situation arises through no fault of the defendant.

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Thus, while we continue to adhere to our general rule against speculative

allegations of prejudice, see Perez, 793 F.2d at 257, we find Perez inapplicable to

the unique factual scenario presented here. See also Jackson, F-2000-387, at 4

(Chapel, J., dissenting) (“Despite the State’s suggestion that Jackson’s claim is

equally speculative, the record amply shows what Jackson believed Brown would

have testified about.”).

Second, we find that the unavailability of Mr. Brown resulted directly from

the delay. See Gutierrez, 922 F.2d at 1472. When a key witness dies within a

year of the indictment (the time after which a speedy trial inquiry is triggered),

the delay does not impair the defense because the witness would not have been

available for trial even if the proceedings had occurred in a timely manner. See,

e.g., Hakeem v. Beyer, 990 F.2d 750, 763 (3d Cir. 1993) (finding no defense

impairment when a witness “died four months after [the defendant’s] arrest,

[because] the delay had [not] progressed to the point at which any speedy trial

inquiry would have been triggered”). Here, however, Mr. Brown died at least one

and one-half years after the State entered the information against Mr. Jackson. 5

Thus, Mr. Jackson could have used Mr. Brown’s testimony if his trial had

proceeded in a timely manner.

5
The record merely states that Mr. Brown passed in 1997. Thus, he died
from one and one-half to two and one-half years after the information was filed
against Mr. Jackson.

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 We must also consider factors that weigh against a finding that the delay

impaired Mr. Jackson’s defense. First, the jury heard the substance of Mr.

Brown’s probable testimony at trial as recounted by Mr. Jackson. Cf. United

States v. Gomez, 67 F.3d 1515, 1522-23 (10th Cir. 1995) (finding no prejudice

because the substance of the unavailable witness’s testimony was available in a

transcript from a previous trial). Second, had Mr. Brown testified in the manner

suggested by Mr. Jackson and had the jury heard testimony that Mr. Jackson was a

drug addict at the time, a reasonable jury could still have rejected the entrapment

defense. Under Oklahoma law, “[e]ven if induced to commit the crime, [Mr.

Jackson] may not avail himself of the [entrapment] defense if he otherwise [was]

predisposed to commit it.” Carney v. State, 679 P.2d 1303, 1304 (Okla. Ct. Crim.

App. 1984). While Mr. Brown’s testimony, as hypothesized by Mr. Jackson,

would have shown inducement, it would have left open the question of whether

Mr. Jackson was predisposed to traffic in LSD. Mr. Jackson, however, testified

that, at the time of the incident: (1) he was a drug addict; (2) he wanted to secure

drugs for his personal use; and (3) he was motivated to sell LSD by the prospect

of getting free LSD in return. Given this testimony, a reasonable jury could have

found Mr. Jackson predisposed to traffic in LSD and rejected his entrapment

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defense. 6

These competing factors leave us in doubt as to whether the delay, in fact,

impaired Mr. Jackson’s defense. Our doubt, however, is not determinative here.

Under AEDPA, we may only make a finding that differs from the OCCA’s if the

OCCA’s finding was contrary to clearly established Supreme Court precedent.

Here, clearly established Supreme Court precedent does not preclude a finding by

the OCCA that Mr. Jackson failed to establish an impairment to his defense.

E. Balancing

Speedy trial claims require applying a balancing test. Because we focus on

the OCCA’s decision and not its reasoning, see Aycox, 196 F.3d at 1177, the fact

that the OCCA has made findings regarding the Barker factors that are contrary to

clearly established Supreme Court precedent is insufficient to grant habeas relief.

Habeas relief is only available if there is no possible balancing of the factors that

both supports the OCCA’s ultimate decision and is not contrary to clearly

6
The record, however, does not reveal whether Mr. Brown would have
testified that Mr. Jackson was a drug addict or if Mr. Jackson would have made
this admission on the stand if Mr. Brown had testified. This ambiguity is
especially vexing given that under Oklahoma law the State has the burden to
prove beyond a reasonable doubt that no entrapment occurred. See Okla. Unif.
Jury Instr. - Crim. § 8-26; McInturff v. State, 554 P.2d 837, 839-40 (Okla. Ct.
Crim. App. 1976). We assume, however, that Mr. Jackson’s status as a drug
addict would have been presented to the jury even if Mr. Brown had testified
because Mr. Jackson does not argue that the drug-addiction testimony would not
have been given if Mr. Brown had testified.

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established Supreme Court precedent. Hence, we turn to the balancing of the

Barker factors to determine whether the OCCA’s overall decision was objectively

unreasonable.

First, clearly established Supreme Court law requires that a delay of four

and one-third years both triggers the remaining Barker analysis and weighs

against the State. See Doggett , 505 U.S. at 652. Next, clearly established

Supreme Court law requires that an unexplained, four and one-third-year delay

weighs against the State even more heavily than a shorter negligent delay. See id.

at 656-57; Barker , 407 U.S. at 531, 533-34 . Third, the state court record clearly

and convincingly establishes that Mr. Jackson raised the speedy trial claim before

the state trial court. See 28 U.S.C. § 2254(d)(2) . Hence, clearly established

Supreme Court law requires this factor to weigh against the State. See Doggett ,

505 U.S. at 654. On the other side of the scales, we cannot say, pursuant to

clearly established Supreme Court law, that Mr. Jackson’s defense was hindered

as a result of the delay. In order to grant habeas relief, then, we must find

pursuant to clearly established Supreme Court law that there is no possible

balancing of these factors that is consistent with the OCCA’s decision.

There is no such clearly established Supreme Court law supporting Mr.

Jackson’s claim for relief. While the Court has held that “a showing of prejudice

to the defense at trial [is not] essential to establish a federal speedy trial claim[ in

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every case,]” Moore, 414 U.S. at 25, Mr. Jackson fails to establish any grounds

for us to find prejudice as to any other protected interest. This is not to say,

however, that every case necessarily requires a finding of prejudice. See id. at 27.

But we have held that “[w]hile prejudice is not essential to a violation, there is . .

. reluctance to find a speedy trial deprivation where there is no prejudice.”

United States v. Brown, 600 F.2d 248, 254 (10th Cir. 1979). Most importantly,

there is no clearly established Supreme Court law mandating a balancing that

reaches a result contrary to the OCCA’s decision. Therefore, we cannot conclude

that the OCCA’s decision to deny Mr. Jackson’s Sixth Amendment claim is

objectively unreasonable in light of clearly established Supreme Court precedent.

V. CONCLUSION

Because we cannot conclude that the OCCA’s ultimate balancing of the

four Barker factors was objectively unreasonable in light of clearly established

Supreme Court precedent, we AFFIRM. Appellant’s pro se motion “to re-brief

the appeal if necessary” is denied.

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