Shawn Khalifa v. Brenda Cash

MEMORANDUM *

Shawn Khalifa was arrested for participating in a home invasion of an elderly man’s home to steal some items during which two accomplices killed the homeowner. Khalifa was not tried until three- and-a-half years later, although state courts found that he objected to continuances for only about eight months of that time. Khalifa now seeks habeas relief for this delay. We review whether Khalifa properly exhausted his claim that his federal Sixth Amendment speedy trial right was violated by the delay in the trial court, and we review the claim’s merits.

The exhaustion requirement is satisfied when “the federal claim has been fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 , 92 S.Ct. 509, 512 , 30 L.Ed.2d 438 (1971); see also Duncan v. Henry, 513 U.S. 364, 365 , 115 S.Ct. 887, 888 , 130 L.Ed.2d 865 (1995) (per cu-riam). At oral argument, counsel for the State acknowledged that the State did not affirmatively argue Khalifa failed to exhaust his Sixth Amendment speedy trial claim. In the State’s view, Khalifa fairly presented this claim to the California courts because the corollary California statutory right essentially “intertwines” the state…

dissenting:

Shawn Khalifa 1 appeals his felony murder conviction arguing his Sixth Amendment speedy trial rights were violated.

The disposition correctly applied the first Barker factor by finding that the three-and-a-half year delay was “clearly lengthy and thus presumptively prejudicial.” The disposition correctly determined that the second factor was neutral because most of the delay was caused by Khalifa’s co-defendants’ requests for continuances.

Contrary to the disposition I submit that the third factor regarding the forcefulness of Khalifa’s assertion of his speedy trial right was not neutral. A defendant’s assertion of his speedy trial right is “entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker v. Wingo, 407 U.S. 514, 531-32 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Khalifa objected to continuances on five separate occasions during the eight month period between October 2006 and June 2007. To vindicate his right to a speedy trial he moved to sever his case from those of his co-defendants. While Khalifa consented to much of the delay, that consent does not neutralize the fact that he forcefully asserted his…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 25 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SHAWN MALONE KHALIFA, No. 12-56230

Petitioner - Appellant, D.C. No. 5:10-cv-01446-GAF-

PLA

v.

BRENDA M. CASH, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted October 8, 2014 Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

Shawn Khalifa was arrested for participating in a home invasion of an

elderly man’s home to steal some items during which two accomplices killed the

homeowner. Khalifa was not tried until three-and-a-half years later, although state

courts found that he objected to continuances for only about eight months of that

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. time. Khalifa now seeks habeas relief for this delay. We review whether Khalifa

properly exhausted his…