concurring in part and dissenting
in part:
I concur in part II of the majority opinion, and in the result. However, I respectfully dissent with respect to the process by which the majority reaches that result. Procedural bar precludes consideration of Gutierrez’s speedy trial claim.
When the last state court of review clearly holds that a federal constitutional issue has been forfeited due to a violation of state procedural rules, and the finding rests on adequate and independent state law grounds, then such a finding of procedural default bars federal habeas review of the federal claim. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Shafer v. Stratton, 906 F.2d 506, 509-10 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 393, 112 L.Ed.2d 402 (1990). The majority opinion recognizes this rule, but holds that the New Mexico procedural bar rule as applied to speedy trial claims does not rest on adequate state grounds because it is not regularly followed. Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988). This is a narrow holding, despite stray and nonbinding dicta in the majority opinion regarding the independence of the state ground, and whether the state court clearly invoked procedural bar (which it manifestly did).
Many New Mexico cases, in a variety of different contexts, recite and apply the general rule that “[o]n appeal, a reviewing court will not consider issues not raised in the trial court.” State v. Muise, 103 N.M. 382, 707 P.2d 1192, 1196 (Ct.App.1985); see *1474State v. Elliott, 89 N.M. 756, 557 P.2d 1105, 1107 (1977); State v. Bidegain, 88 N.M. 466, 541 P.2d 971, 976 (1975); State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668 (1968); State v. Lucero, 104 N.M. 587, 725 P.2d 266, 269-70 (Ct.App.1986); State v. Edgington, 99 N.M. 715, 663 P.2d 374, 377 (Ct.App.), cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983); State v. Bolen, 88 N.M. 647, 545 P.2d 1025, 1026 (Ct.App.), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976); State v. Vallejos, 86 N.M. 39, 519 P.2d 135, 139 (Ct.App.1974); State v. Baca, 81 N.M. 686, 472 P.2d 651, 651 (Ct.App.), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970); see also New Mexico Supreme Court Rules of Appellate Procedure (“SCRA”) 12-216 (1986). The New Mexico courts have stated repeatedly that constitutional rights, including the right to a speedy trial, can be waived. See, e.g., State v. Mendoza, 108 N.M. 446, 774 P.2d 440, 442 (1989); Raburn v. Nash, 78 N.M. 385, 431 P.2d 874, 876 (Ct.App.), petition dismissed, 389 U.S. 999, 88 S.Ct. 582, 19 L.Ed.2d 613 (1967); State v. Urban, 108 N.M. 744, 779 P.2d 121, 125 (Ct.App.1989); State v. Bishop, 108 N.M. 105, 766 P.2d 1339, 1342-43 (Ct.App.1988); State v. Baird, 90 N.M. 678, 568 P.2d 204, 205 (Ct.App.), aff'd, 90 N.M. 667, 568 P.2d 193 (1977).
The majority opinion relies on three cases for its conclusion that the New Mexico courts do not follow their own procedural bar rules where speedy trial claims are concerned: State v. Mendoza, 108 N.M. 446, 774 P.2d 440 (1989), State v. Gallegos, 109 N.M. 55, 781 P.2d 783 (Ct.App.1989), and State v. Urban, 108 N.M. 744, 779 P.2d 121 (Ct.App.), cert. denied, 108 N.M. 713, 778 P.2d 911 (1989). Those cases are easily distinguished from the situation involved here. Mendoza, Gallegos, and Urban each addressed circumstances in which speedy trial challenges were raised in the trial court. In the case before us the speedy trial issue was not raised at all in the trial court. Thus, the character of the default that was presented to the New Mexico Supreme Court was different.
In Gallegos and Urban there was no procedural bar because timely motions were made before the trial court. In Gallegos the court stated “we affirm the trial court’s denial of defendant’s motion to dismiss two of the counts for speedy trial violations.” 781 P.2d at 787 (emphasis added). And, it went on to reemphasize the point, by stating: “[a]t the outset, we note that, although defendant moved in the district court to dismiss all the counts for speedy trial violations, he does not appeal the denial of his motion on the counts involving the Sundance case.” Id. 781 P.2d at 789 (emphasis added). The appellate court then addressed the appeal from the denial of the motions to dismiss in the two cases to which the appeal applied.
In Urban, the court begins its discussion by stating that “[defendant appeals his conviction for shoplifting, contending that the trial court erred in denying his motion to dismiss the indictment on sixth amendment speedy trial and fourteenth amendment due process grounds.” 779 P.2d at 122. Thereafter, the entire discussion in the court of appeals was whether or not the motion in the trial court was timely. The court concluded:
[f]or all of these reasons, we conclude that Rule 5-601(C) lists several motions that must be raised before trial but need not be raised at arraignment or within twenty days thereafter. See State v. Aragon [99 N.M. 190, 656 P.2d 240 (Ct.App.1982)]. Defendant’s motion was based on two objections, both of which were directed at the initiation of the prosecution. Therefore, defendant’s motion was timely.
Id., 779 P.2d at 123-24 (emphasis added).
Mendoza also involved a timely motion seeking dismissal for violation of the New Mexico statutory speedy trial time limits. There was no question in that case of procedural bar since the motion in the trial court was obviously timely and the appeal properly perfected. The majority opinion’s strained attempt to reconstruct these cases in a way to achieve some equivalence with the type of case before us includes the necessity of building on an “inference” it *1475draws from Mendoza. See supra text following note 2.
The only recent case from New Mexico which has addressed the situation in which a speedy trial claim was not raised at all in the trial court, expressly holds that in such a circumstance the issue is procedurally barred. State v. Valdes, 109 N.M. 759, 790 P.2d 1040 (Ct.App.), cert. denied, 789 P.2d 1271 (1990).1 In Valdez, the New Mexico Court of Appeals stated:
Defendant also contends that he was denied his sixth amendment right to a speedy trial. Determination of whether a defendant has been denied his constitutional right to a speedy trial requires weighing four factors: length of the delay, reason for the delay, assertion of the right, and prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990); State v. Grissom, 106 N.M. 555, 746 P.2d 661 (Ct.App.1987). The principal stumbling block for defendant is his failure to raise his constitutional claim in the district court. In the portion of defendant's brief-in-chief that addresses the constitutional claim, defendant states, "Mr. Valdez asserted his right in a motion before trial," and cites to the taped transcript for the day of trial. The state's answer brief points out, however, that defendant's trial counsel never claimed violation of a constitutional right and never argued the four factors set out in Barker. Defendant's reply brief does not address the constitutional claim. Our review of the transcript shows that trial counsel discussed only violation of this state's six-month rules.
Because defendant did not raise the constitutional claim until this appeal, there were no district court proceedings to develop fully the facts relating to the Barker factors, and the district court had no opportunity to weigh them. In a similar circumstance, a federal court of appeals wrote:
Although defendants and their counsel are allowed considerable leeway in delaying their demand for a speedy trial before the trial court, the issue must be raised at some point. A complete failure to raise it in the trial court, as was the case here, precludes our consideration of the issue on appeal, for the simple reason that there is nothing to review. There is no decision of the district court weighing the factors considered and no record from which we could independently evaluate the government's conduct. [Citations and footnote omitted.]
United States v. Canniff 521 F.2d 565, 573 (2d Cir.1975), cert. denied sub nom., Benigno v. United States, 423 U.S. 1059 [96 S.Ct. 796, 46 L.Ed.2d 650] (1976).
In short, nothing in the record suggests such a striking violation of the constitutional right to a speedy trial that it would be appropriate to consider that issue for the first time on appeal. See SCRA 1986, 12-216(B).
Id., 790 P.2d at 1044 (emphasis added).2
The majority's electronmicroscope approach to dissecting the New Mexico cases *1476is consistent only with the dissenting opinion approach in Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435, reh’g denied, 490 U.S. 1031, 109 S.Ct. 1770, 104 L.Ed.2d 205 (1989), and such recent cases as Meadows v. Legursky, 904 F.2d 903 (4th Cir.), cert. denied, — U.S.-, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990). The majority opinions in those cases took a more supportive view of the state’s applications of their procedural bar rules than the dissenting judges wanted to take.
In sum, the majority opinion is wrong on procedural bar for two reasons. First, it misinterprets and incorrectly analyzes and applies New Mexico case law. Second, it approaches its procedural bar analysis with an apparent set of presumptions which I find unacceptable: that the state courts are not faithful to their own rules, and are seemingly unaware of how to apply them; and, that we ought to strain to permit federal habeas review and avoid finding procedural bar on state grounds. In my view, the presumptions must be exactly the opposite. Rather than going out of the way to imagine fatal defects in state cases so as to deny state courts the privilege of applying their own procedural bar rules, I would accord a presumption of regularity to state court applications of state rules.3
Accordingly, for the reasons stated, I respectfully dissent to that part of the majority opinion referred to above.
. It does not matter that the court in Valdez went on to reject the speedy trial claim on the merits, for we view that disposition, in the context of the case, as clearly an alternative holding. A state court may make alternative holdings on the merits and on procedural bar:
a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state-ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.
Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct, at 1044 n. 10 (emphasis in original).
. It is entirely appropriate to focus on the single most recent case from a state appellate court since the state courts are to be expected to follow current teachings of the United States Supreme Court. Meadows v. Legursky, 904 F.2d 903 (4th Cir.), cert. denied, - U.S. -, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990), is an example of reliance on a single state court case to demonstrate regularity for "adequate" state ground purposes-a point about which the dissent in that case complains. Id. at 914.
. Thus, for instance, in Dugger v. Adams, 489 U.S. 401, 410-12 n. 6, 109 S.Ct. 1211, 1217-18 n. 6, 103 L.Ed.2d 435 (1989), the Supreme Court brushed aside the fact that Florida courts may have hot been perfectly antiseptic with respect to procedural default rules in cases raising Caldwell issues (Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)).