FILED
NOT FOR PUBLICATION FEB 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREW A. CEJAS, No. 08-16715
Petitioner - Appellant, D.C. No. 2:05-cv-02274-GEB-
GGH
v.
LOU BLANAS; EDMUND G. BROWN, MEMORANDUM *
Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted February 12, 2010 **
San Francisco, California
Before: HALL and McKEOWN, Circuit Judges, and ZILLY, *** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
Petitioner Andrew Cejas seeks federal habeas relief under 28 U.S.C. § 2254
on the ground that he was denied his constitutional right to a speedy trial
guaranteed by the Sixth Amendment. The district court denied the petition and we
affirm.
We review de novo a district court’s decision denying a petition for writ of
habeas corpus. Riggs v. Fairman, 399 F.3d 1179, 1181 (9th Cir. 2005). Habeas
relief may be granted only if we determine that the last reasoned decision at the
state court level was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” or the decision “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).
To grant relief, we must conclude that the state court decision was “not only
erroneous, but objectively unreasonable.” Brown v. Ornoski, 503 F.3d 1006, 1010
(9th Cir. 2007) (internal quotations and subsequent citations omitted). To the
extent that a state court decision is unaccompanied by a rationale for its conclusion,
we conduct an independent review of the record to determine whether the state
court decision is objectively unreasonable. Id. at 1010-11. Independent review of
the record is not de novo review of the constitutional issue, but rather the only way
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a federal court can determine whether a “silent” state court decision is objectively
unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Cejas argues that his right to a speedy trial was violated when his trial did
not start for more than three years after his arrest, because the trial court
disregarded statutory safeguards and allowed excessive and unnecessary delays.
On review of a speedy trial claim, we weigh four factors identified by the Supreme
Court in Barker v. Wingo, 407 U.S. 514 (1972): (1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of his speedy trial right; and (4)
prejudice to the defendant. Barker, 407 U.S. at 530-32. Under the Barker factors,
the state trial court’s decision to deny the motion to dismiss was not objectively
unreasonable.
The first factor, the length of delay, is a threshold issue, and unless the
length of delay is presumptively prejudicial, we need not review the remaining
factors. See United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). A
delay of three years and two months from arrest to the start of trial is sufficient to
cross that threshold. Courts generally have found that delays approaching one year
are presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n.1
(1992). In analyzing the remaining factors, we conclude that Cejas’s speedy trial
right was not violated.
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The majority of the delay in this case is attributable to Cejas, whose counsel
requested continuances amounting to roughly half of the alleged unconstitutional
delay, and consented to every continuance requested by the state and Cejas’s co-
defendant. Cejas was present for nearly every grant of continuance, never once
objected to a continuance before the trial court, and on one occasion expressly
waived statutory rights to both a preliminary hearing within ten days of the entry of
his plea, and to trial within sixty days. “[D]elay attributable to the defendant’s own
acts or to tactical decisions by defense counsel will not bolster defendant’s speedy
trial argument,” McNeely v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003), because
“[t]he Speedy Trial Clause primarily protects those who assert their rights, not
those who acquiesce in the delay.” United States v. Aguirre, 994 F.2d 1454, 1457
(9th Cir. 1993). The delay attributable to the government does not tip this factor in
Cejas’s favor.
Cejas argues that his counsel’s actions cannot be held to waive his right to a
speedy trial, and that the trial court should have requested his express permission
for every continuance, but the Supreme Court has held that an attorney may waive
his client’s speedy trial right without express permission because “[s]cheduling
matters are plainly among those for which agreement by counsel generally
controls,” and “[r]equiring express assent from the defendant himself for such
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routine and often repetitive scheduling determinations would consume time to no
apparent purpose.” New York v. Hill, 528 U.S. 110, 114-15 (2000). While Cejas
disagreed with his attorney about whether to pursue a motion to dismiss premised
on a speedy trial violation and how much time was needed to prepare for his trial,
he never alerted the state trial court to the disagreement, waited fifteen months
after his arrest to reserve the right to pursue the motion to dismiss and another 566
days to file the motion, while expressly consenting to one continuance and
acquiescing to the remainder. Cejas’s conduct weighs against determining his
speedy trial right was violated.
As to the prejudice factor, the trial judge concluded there was no prejudice
because Cejas had been represented by counsel at every step in the trial and Cejas
fails to raise any established Supreme Court precedent that makes this
determination objectively unreasonable. We conclude that this factor also weighs
against finding a violation of the right to a speedy trial. In sum, the decision of the
state court was neither contrary to nor based on an unreasonable application of
established federal law and the findings made by the state court are not
unreasonable.
Cejas briefed uncertified claims that the state trial court’s misapplication of
speedy trial provisions in the California Penal Code violated his due process and
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speedy trial rights, and amounted to structural error. We do not consider these
challenges to the implementation of the state statutory provisions because “it is not
the province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
AFFIRMED.
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