Take the Fifth

Designated for publication

• Berryman v. Huffman, 23-60627, appeal from N.D. Miss.
  • Douglas, J. (Wiener, Douglas, Ramirez) (oral argument), Ramirez, J., dissenting; habeas corpus, speedy trial, Sixth Amendment, AEDPA
  • Reversing denial of § 2254 petition and remanding with instructions to issue writ of habeas corpus regarding petitioner’s speedy trial claim arising from the elapsing of 1,233 days between his arrest and his state court trial.
  • Brian Scott Berryman spent over three years—1,233 days—in jail awaiting trial on two state charges: shooting into a dwelling and possession of a firearm by a felon. During that delay, a key defense witness died, and Berryman repeatedly sought dismissal on speedy-trial grounds. The state trial court applied the Barker v. Wingo balancing test to each count separately, finding a Sixth Amendment violation only as to Count I and dismissing that count, but not Count II. After conviction on Count II and a life sentence as a habitual offender, Berryman exhausted state appeals, arguing that dismissal of only one count was an impermissible partial remedy. The Mississippi Court of Appeals affirmed, holding that Barker permits a count-by-count approach. One judge dissented, emphasizing that the Supreme Court’s precedents require dismissal of the entire indictment upon finding a speedy-trial violation.
  • Berryman petitioned for federal habeas relief under 28 U.S.C. § 2254, asserting that the Mississippi courts’ count-by-count approach was contrary to or an unreasonable application of clearly established Supreme Court precedent. The district court denied relief but granted a certificate of appealability limited to whether a speedy-trial violation under Barker may be adjudicated count-by-count. The Fifth Circuit reviewed the Mississippi appellate decision under § 2254(d)(1)’s deferential standard, explaining that federal relief is proper only if the state decision was contrary to, or involved an unreasonable application of, clearly established law. The panel focused exclusively on the remedy question—whether dismissing only one count rather than the entire indictment comported with Barker and Strunk v. United States.
  • Reviewing Supreme Court precedent, the Fifth Circuit traced Barker’s four-factor test for determining a speedy-trial violation and its holding that “dismissal of the indictment” is the “only possible remedy” when such a violation is found. Strunk reaffirmed that courts may not craft lesser or “tailored” remedies, rejecting sentence reductions as alternatives. The panel noted that Barker referenced United States v. Mann, a case involving a multi-count indictment that resulted in dismissal of all counts, and that subsequent Supreme Court and circuit precedent—including Betterman v. Montana and United States v. Loud Hawk—had consistently spoken in terms of dismissal of the “indictment” or “charges,” not of individual counts. Thus, once a speedy-trial violation exists, courts lack discretion to impose partial or intermediate relief.
  • Applying that principle, the Fifth Circuit concluded that the Mississippi courts’ decision was an unreasonable application of Barker and Strunk. The flexibility Barker affords applies only to determining whether a violation occurred, not to the remedy for that violation, which is fixed and categorical. Dismissing one count but not the others “contravenes the Supreme Court’s holdings,” the panel held, because the Sixth Amendment remedy is dismissal of the entire prosecution once any count is tainted by unconstitutional delay. Finding no room for “fairminded disagreement” on that issue, the court reversed the district court’s denial of habeas relief and remanded with instructions to grant Berryman’s § 2254 petition and issue the writ, vacating his conviction and sentence on the remaining count.
  • Judge Ramirez dissented, contending that no clearly established Supreme Court precedent requires dismissal of an entire multi-count indictment when only one count suffers a speedy-trial violation. While Barker v. Wingo and Strunk v. United States held that dismissal of “the indictment” is the sole remedy, both involved single-count indictments, and extending their rule to multi-count indictments would constitute new law—barred under AEDPA. The dissent emphasized that “clearly established Federal law” under § 2254(d)(1) means only specific Supreme Court holdings, not dicta or lower-court interpretations. Because the Supreme Court has never addressed the precise issue presented, and because fair-minded jurists can reasonably disagree, the state appellate court’s decision neither contradicted nor unreasonably applied federal law. The dissent therefore agreed with the district court’s denial of habeas relief and argued that AEDPA’s strict limits preclude extending Barker and Strunk to Berryman’s case.

Unpublished decisions

• U.S. v. Rodriguez, 25-10266, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Reisinger, 25-10378, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Parker, 25-10553, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Doggett, 24-11079, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Paul v. Pepperidge Farm, Inc., 25-20067, appeal from S.D. Tex.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), civil
  • Affirming dismissal of plaintiff’s claims, without describing the claims or issues on appeal.

• U.S. v. Lucio-Alvarado, 25-40298, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Martinez-Munoz, 25-50213, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentence
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Moore, 25-60205, appeal from N.D. Miss.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing, guilty plea
  • Dismissing appeal of sentence as barred by appeal waiver in guilty plea agreement.

• U.S. v. Smith, 24-60600, appeal from S.D. Miss.
  • Higginson, J. (Southwick, Higginson, Wilson) (no oral argument), criminal, Second Amendment
  • Vacating in part (and affirming in part) district court’s denial of defendant’s motion to dismiss indictment for possession of a firearm by a felon, and remanding for reconsideration of as-applied Second Amendment challenge.