IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40872
Summary Calendar
MATTHEW THOMAS CLARKE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:98-CV-235
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June 7, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Matthew Thomas Clarke, Texas prisoner # 478025, appeals
following the denial of his 28 U.S.C. § 2254 application. The
district court granted a narrowly-drawn certificate of
appealability (COA) on Clarke’s claim that his right to a speedy
trial was violated with respect to his retrial on the issue of
punishment.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 01-40872
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Clarke first argues that the state appellate court’s
adjudication of his speedy trial claim was based on “myths” that
are contradicted by the state record. We construe this as an
argument that the state appellate court’s adjudication of Clarke’s
speedy trial claim “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). After a thorough review of
the state record, we have determined that Clarke has not pointed to
an aspect of the state appellate court’s adjudication that was
based on an unreasonable determination of the facts.
Clarke also submits that the state appellate court’s
adjudication of his claim was contrary to clearly established
federal law as established by Barker v. Wingo.1 In this vein,
Clarke contends that the state appellate court concluded that he
had not asserted his right to a speedy trial until his motion for
a speedy trial was denied by the state trial court. We do not
endorse Clarke’s strained reading of the state appellate court’s
opinion. The state appellate court recognized that Clarke asserted
his right to a speedy trial upon filing a “motion for speedy
retrial” on November 17, 1993, approximately one year after the
conviction on his second extraneous offense became final. See
Clarke v. State, 928 S.W.2d 709, 713, 718 (Tex. App. 1996).
Clarke also contends that the state appellate court’s
determination that his two-year delay in asserting his right to a
1
407 U.S. 514 (1972).
No. 01-40872
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speedy trial contributed to the impairment of his defense was
contrary to clearly established federal law. Clarke has not shown
that, had he timely and forcefully asserted his right to a speedy
retrial on punishment, he would not have been tried at an earlier
date. See United States v. Howard, 577 F.2d 269, 271 (5th Cir.
1978)(noting that trial court might have imposed sentence at an
earlier date had the defendant timely asserted his right). Clarke
has failed to show that the state appellate court’s decision was
contrary to clearly established federal law as determined by the
Supreme Court. See Williams v. Taylor, 529 U.S. 362, 405-06
(2000); 28 U.S.C. § 2254(d)(1).
Giving liberal construction to Clarke’s pro se brief, we
also consider whether the state appellate court’s decision involved
an unreasonable application of clearly established federal law. 28
U.S.C. § 2254(d)(1). Because Clarke’s efforts to obtain a speedy
trial lacked “frequency and force,” Barker, 407 U.S. at 529, the
state court’s determination that the third Barker prong weighed
heavily against Clarke was not objectively unreasonable.
See Williams, 529 U.S. at 409. In view of Clarke’s lengthy delay
in asserting his right to a speedy trial, and his failure to assert
the right until after his convictions on the extraneous sexual
offenses were final, we further conclude that the state appellate
court’s decision to attribute prejudice to Clarke, and its ultimate
denial of relief, were not objectively unreasonable. “[T]he
failure to assert the right will make it difficult for a defendant
No. 01-40872
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to prove that he was denied a speedy trial.” Barker, 407 U.S. at
532.
Clarke’s remaining arguments, which concern the alleged
“duplicity” of the state appellate court, the “demand-waiver” rule,
and the impact of Texas statutes and rules of court, are either
expressly excluded from the COA granted by the district court or
are clearly outside its scope. Accordingly, we cannot consider
them. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.