Case Information
*2 SUHRHEINRICH, Circuit Judge.
Petitioner-Appellant Ryan Brown, a state prisoner, appeals the district court’s denial of his petition for writ of habeas corpus based on violations of his speedy-trial rights and related claims of ineffective assistance of counsel. [1] We affirm.
I.
Brown’s convictions resulted from controlled buys of cocaine initiated and made by an
informant on September 16, November 8, and December 7, 2005, and on January 10, 2006.
See People v. Brown
, No. 284568,
Mirza made similar purchases over the next few months. On November 8, 2005, Mirza attempted to purchase two ounces of cocaine from Brown. Prior to the transaction, Dare searched Mirza, gave him $1,700, and provided an audio recorder. Undercover police officer Kenneth Spencer accompanied Mirza. Spencer waited in the car during the transaction, which took place at Brown’s cousin’s house. Mirza was able to purchase only one ounce of cocaine. Mirza returned $850 and gave Spencer the cocaine.
On December 7, 2005, Mirza met Brown again at Brown’s cousin’s house. Dare searched Mirza and gave him $1,700 to buy two ounces of cocaine. Dare also supplied Mirza with an audio recorder. Spencer accompanied Mirza. Brown gave Mirza two ounces, which Mirza later gave to Spencer. Afterwards, Dare searched the car, patted Mirza down, and retrieved the recorder.
Sergeant Pete Simerly offered “support surveillance,” for the four buys from a nearby vehicle.
On January 10, 2006, Mirza conducted a “buy bust” of Brown. Mirza and Spencer went to Brown’s apartment. Brown got into Mirza’s car and Spencer got out, but waited within arm’s length of the car during the transaction. As Mirza was about to weigh the drugs, the take-down team arrested Brown. Dare searched Mirza and the vehicle prior to the bust.
The police took Brown to the Oakland County Jail, where he was interviewed by Dare and another officer. Dare gave Brown his Miranda warnings using a standard form. Brown signed the form and waived those rights. Brown also admitted in a written statement that he sold cocaine to Mirza four times. Brown identified his supplier, “Gerald Jackson.” [2] Brown was then released from custody.
On January 27, 2006, the State issued a criminal complaint against Brown, and secured an arrest warrant on February 27, 2006. [3] Brown was unaware of these developments until he was arrested on September 24, 2007, pursuant to an unrelated bench warrant concerning a child- support dispute. On that date, Brown was arraigned on the charges that he sold cocaine to Mirza on four occasions.
Brown was tried on the drug charges on February 15-16, 2008. Mirza, Dare, Spencer, and Simerly testified for the prosecution; the defense did not call any witnesses. Mirza’s defense theory was that he did not sell the cocaine to Mirza, but simply permitted Mirza to use his scale to weigh cocaine that Mirza already possessed. The audio recordings of Mirza’s transactions with Brown were unavailable at trial. Dare testified that he lost the tapes in the course of several moves. Brown was convicted of all four offenses: two counts of delivering between 50 and 450 grams of cocaine (Counts 1 and 2) and two counts of delivering less than 50 grams of cocaine (Counts 3 and 4). Brown was sentenced to between 15 and 40 years’ imprisonment on Counts 1 and 2, and between 2 ½ and 40 years’ imprisonment on Counts 3 and 4, all to run concurrently.
Brown appealed to the Michigan Court of Appeals, raising two issues: (1) that trial
counsel was ineffective for failing to request separate trials on each of the charged offenses, and
(2) that the trial court erred in finding that his written confession was voluntary. The Michigan
Court of Appeals affirmed.
See People v. Brown
, 2009 WL 1883978, at *2. The Michigan
Supreme Court denied Brown’s application for leave to appeal.
See People v. Brown
,
Brown filed a motion for relief from judgment in the state trial court. He sought relief on the following grounds: (1) that he was denied due process when exculpatory audio recordings were lost during the twenty-month delay between Defendant’s arrest and trial and that counsel was ineffective for failing to move for dismissal on such grounds; (2) that he was denied effective assistance of counsel when trial counsel failed to investigate, and when appellate counsel failed to raise, the foregoing issue on direct appeal; (3) that trial counsel was ineffective for failing to uncover evidence that his confession was involuntarily made after he was threatened by police; and (4) that appellate counsel was ineffective for failing to raise this issue on direct appeal. Brown later filed a motion to amend his motion for relief from judgment, adding three grounds for relief. Of relevance here was Brown’s claim that “[t]he state violated the VI & XIV Amendment rights to a speedy trial and due process by conducting the trial more than two years after Brown’s arrest which caused actual prejudice according to Barker v. Wingo ” and that trial counsel was ineffective for failing to assert his speedy-trial rights and appellate counsel was ineffective for failing to raise these issues on direct appeal. Id. The trial court denied the motion for relief from judgment, holding that Brown had not met his burden of establishing a right to relief under MCR 6.508(D)(3) because he had not demonstrated good cause for failure to raise the issues on direct appeal. In that ruling, the court addressed all of the issues raised in the motion for relief from judgment and none of the issues raised in the amended motion and did not otherwise refer to the amended motion. Id. Brown sought appellate review, but the Michigan Court of Appeals and Michigan Supreme Court each denied review because Brown “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).”
Brown filed a federal habeas petition in 2013. The district court rejected all of Brown’s claims, but granted a certificate of appealability on two grounds: (1) that Brown’s due-process rights were violated by the twenty-month delay between the commission of his offenses in late 2005 and early 2006 and his second arrest in September 2007 (Offenses-to-Second-Arrest Delay); and (2) Brown’s Sixth Amendment speedy-trial right was violated by the delay between his first arrest in January 2006 and his trial in February 2008 (First-Arrest-to-Trial Delay).
Applying the
Barker v. Wingo
,
This appeal follows.
II.
The district court entered final judgment on July 1, 2015, and granted a certificate of appealability on two issues. Brown filed a timely notice of appeal on July 14, 2015. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), limited to the claims that were certified for appeal. Id. § 2253(c)(1).
III.
This court reviews the district court’s denial of habeas relief de novo.
Keys v. Booker
,
798 F.3d 442, 449 (6th Cir. 2015). The scheme set forth in the Antiterrorism and Effective
Death Penalty Act (AEDPA) sharply curtails the scope of a federal habeas court’s review if a
claim has been “adjudicated on the merits in State court.”
Johnson v. Williams
,
The Supreme Court has made clear that there exists a rebuttable presumption that a state
court has reached the merits of a petitioner’s federal claims.
See Harrington v. Richter
, 562 U.S.
86, 99 (2011) (presumption applies when a state court issues an unexplained order denying relief
on all claims);
Johnson
,
While the
Richter/Johnson
presumption is not irrebuttable, it is a “strong one that may be
rebutted only in unusual circumstances,”
id
. at 1096, such as “when there is reason to think some
other explanation for the state court’s decision is more likely.”
Richter
, 562 U.S. at 99.
One example of when the presumption may be rebutted occurs when a state court rejects a
federal claim “as a result of sheer inadvertence.”
Johnson
,
To determine whether the district court and parties are correct that no state court reached
the merits of Brown’s speedy trial and attendant ineffective assistance of counsel claims, this
court “looks through” unexplained orders to the “last reasoned” decision of the state courts.
See
Ylst v. Nunnemaker
, 501 U.S. 797, 804 (1991). Form orders denying appellate review under
MCR 6.508(D) are “unexplained.”
Guilmette v. Howes
,
The state trial court expressly addressed each of the claims raised in Brown’s original
post-conviction motion, denying them on procedural grounds, but did not address
any
of the
claims raised in Brown’s amended motion. There appears to be no sound rationale for the state
trial court’s silence on the amended claims, and specifically, on Brown’s Sixth Amendment
claim: It was sufficiently raised as a separate federal claim by way of more than a mere “fleeting
reference”; it was not “too insubstantial to merit discussion,” a fact underscored by the district
court’s conclusion that it was at least meritorious enough to warrant a certificate of appealability;
and it was not covered by any other claims by implication.
See Johnson
,
We review questions of law related to speedy-trial violations de novo and questions of
fact under the “clearly erroneous” standard.
United States v. Robinson
,
IV.
The Sixth Amendment guarantees in relevant part that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. These rights
apply to the states through the Fourteenth Amendment.
Klopfler v. North Carolina
, 386 U.S.
213, 223 (1967). The purpose of the speedy-trial guarantee is to protect the accused against
oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal charges,
and the risk that evidence will be lost or memories diminished.
Doggett v. United States
,
In
Barker
, the Supreme Court established a four-factor test for determining whether a
defendant has been denied the constitutionally guaranteed right to a speedy trial.
Barker
held
that a court must consider (1) the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of his right, and (4) prejudice to the defendant.
Barker
,
A.
1. As a threshold matter, we are asked to decide when the speedy-trial right was triggered. The speedy-trial right does not apply until the defendant is “accused.” See Marion , 404 U.S. at 313. The parties dispute when that occurred. The district court did not decide the issue, giving Brown “the benefit” of the January 2006 date.
As a general proposition, the right usually attaches when the defendant is arrested or
indicted, whichever is earlier.
Id.
at 320;
Maples v. Stegall
,
The State adds that another core concern of the Sixth Amendment—“anxiety and concern accompanying public accusation,” Marion , 404 U.S. at 320—is also not implicated, because Brown did not think that he had any pending charges against him after the January 10, 2006 arrest. Indeed, Brown reported in a Protective Services Investigation Summary that he went willingly with the police on January 10, 2006, and voluntarily submitted to questioning, and further admitted at the evidentiary hearing prior to trial that he “wasn’t charged with” crimes related to his transactions with Mirza, “wasn’t booked in” on any charges, and wasn’t aware that he had been arrested on January 10, 2006. Thus, the State argues that Brown was not accused of the drug charges until he was arraigned on September 24, 2007. [5]
If the State is correct, the answer is easy: a five month delay—from September 2007 to
February 2008—is not “uncommonly long,”
Doggett
, 505 U.S. at 651, and would not trigger
analysis of the remaining
Barker
factors.
United States v. Robinson
,
Nonetheless, in Doggett , the Supreme Court held that the “speedy trial enquiry” was triggered by an eight-year delay between the defendant’s indictment and arrest, even though the defendant was unaware of the charges against him and not subject to pretrial detention, because he suffered the possibility that his defense would be impaired. In the Doggett majority’s view, the latter is “the most serious” prejudice, “‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’” Doggett , 505 U.S. at 654 (quoting Barker , 407 U.S. at 532); cf. id. at 662, 665 (Thomas J., dissenting) (stating that “the Speedy Trial Clause does not independently protect against prejudice to the defense”; faulting the majority for refusing to acknowledge “two conflicting lines of authority,” one declaring that impairment of the defense “is an independent and fundamental objective of the Speedy Trial Clause” ( Barker ) and the other declaring the opposite ( Marion, MacDonald, Loud Hawk )).
Like the defendant in
Doggett
, Brown did not suffer restraints on his liberty or mental
anguish until was arrested, but he nonetheless argues that he suffered prejudice by the delay.
“[B]ecause we are dealing with a fundamental right of the accused,”
see Barker
,
2.
“The first factor, length of the delay, is a triggering mechanism.”
United States v. Brown
,
B.
In assessing the second factor, the reason for the delay, the court considers who is most at
fault—the government or the defendant.
United States v. Schreane
,
After the January 10, 2006 arrest, the State charged Brown in a complaint and obtained a warrant for his arrest. The State claims that “the record gives an indication, however faint, that the government looked to get a bigger fish (i.e. Gerald Jackson) and tried to offer Brown the opportunity to cooperate” which possibly explains some of the delay. Resp. Br. at 32. In support of this suggestion, the State points to: Dare’s testimony that he “discussed with [Brown] who his supplier was,” Dare’s testimony that he never obtained a search warrant for Brown’s apartment, and trial counsel’s testimony at the sentencing hearing that Brown “was given an opportunity” to cooperate with the police (but felt it “dishonorable to do so”). Brown counters that the record equally suggests that the State forgot about him until it brought him in on a bench warrant concerning a child-support dispute. Furthermore, Dare testified that the investigation into the alleged supplier ended “[s]hortly” after Brown’s arrest date, when the police learned that Gerald Jackson had been killed.
The delay is exclusively the State’s fault. However, as the district court held, “[o]n this record, the Court cannot conclude that the delay was anything but negligent.” As the court noted, nothing in the record suggests that the delay was meant to harass, was in bad faith, or was an attempt to gain a tactical advantage (perhaps other than to seek Brown’s cooperation) and Brown does not claim otherwise.
Brown points to
United States v. Ferreira
,
Brown also directs our attention to two other cases cited in
Ferreira
. In
United States v.
Ingram
,
In
United States v. Erenas-Luna
, 560 F.3d 772 (8th Cir. 2009), the Eighth Circuit
affirmed the district court’s conclusion that the government was “‘clearly seriously negligent’”
where the delay between indictment on drug charges and trial was almost four years (three of
which were attributable to the government).
Id
. at 777-78. There the government readily
admitted that it had “‘dropped the ball’” and let the defendant’s case “‘slip through the cracks,’”
because it did not try to locate and arrest the defendant and “missed multiple opportunities to
apprehend” the defendant.
Id
. at 775, 777. Like Brown, the defendant in
Erenas-Luna
was
unaware of the indictment and therefore was not responsible for the delay in his arrest.
Id.
Erenas-Luna
can be distinguished: here the delay was much shorter, and the State’s negligence
was not egregious. Furthermore, though the police appeared to have “‘made no serious effort’”
to locate Brown,
see id
. (quoting
Doggett
,
Thus, as the district court held, this factor weighs in favor of Brown, but does not weigh heavily against the State.
C.
Although he did not assert the right until post-conviction, Brown argues that this should
not count against him because he did not learn about the charges until late September 2007 and
had incompetent counsel thereafter. Although “failure to assert the right will make it difficult for
a defendant to prove that he was denied a speedy trial,”
Barker
,
The district court “acknowledge[d] that [Brown] could not have demanded a speedy trial
until he was formally charged in September 2007” because he “lacked a forum” until then, but
nonetheless held that this factor weighed against him because he did not make a demand after
September 24, 2007. In
Barker
, the Supreme Court stated that this factor “is closely related to
the other factors . . . . most particularly by the personal prejudice, which is not always readily
identifiable, that he experiences. The more serious the deprivation, the more likely the defendant
is to complain.”
Barker
,
D.
The last factor, prejudice, should be assessed “in the light of” three interests: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern, and (3) to minimize damage to the defense. Barker , 407 U.S. at 532. The third factor is “the most serious,” “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id . Only the third factor is relevant here because Brown was not incarcerated and he was not aware of the charges until five months before trial.
In this circuit, the defendant is required to show that the delay caused “‘substantial
prejudice.”
Ferreira
,
Brown contends that he is entitled to a presumption of prejudice and that he suffered actual prejudice. We disagree.
1.
In
Doggett
, the Supreme Court made clear that “affirmative proof of particularized
prejudice is not essential to every speedy trial claim.”
Doggett
,
Brown claims that he is entitled to a presumption of prejudice because the delay was more than two years, the government doesn’t have a legitimate excuse, the crimes were simple, Brown was easy to find, and the State had all its proof against him when it arrested him.
The pre-trial delay in this case is twenty-five months, which falls between cases where we have found the delay did not generate a presumption of prejudice, see, e.g., United States v. Jackson , 473 F.3d 660, 667 (6th Cir. 2007) (holding that a twenty-month delay between indictment and arrest, attributable to government’s negligence, “was not so long as to justify an inference of prejudice at the fourth step of the Barker inquiry”); and cases that have presumed prejudice, see Ferreira , 665 F.3d at 707-08 (finding a thirty-five month delay based on the government’s negligence to be presumptively prejudicial); Dixon v. White , 210 F. App’x 498, 502 (6th Cir. 2007) (holding that a forty-one month delay—where only thirty-three of those were attributable to the government—was “uncommonly long” and presumptively prejudicial); see also Erenas-Luna , 560 F.3d at 780 (concluding that three-year delay between indictment and arraignment due to “the serious negligence of the government” triggered presumption of prejudice); Ingram , 446 F.3d at 1339-40 (holding that two-year delay caused by egregious government negligence created presumption of prejudice); see generally Maples , 427 F.3d at 1031 (citing cases).
But as
Ferreira
indicated, there is no “bright-line rule.”
See Ferreira
,
2.
Brown claims that the prejudice here is “obvious” and therefore actual because the State lost the tapes of Mirza’s conversations with Brown. See Dickey v. Florida , 398 U.S. 30, 38 (1970) (finding “loss of police records” along with the death of two potential witnesses and unavailability of other witnesses constituted actual prejudice). Brown asserts that the tapes were critical, because the State’s case turned on Mirza’s credibility and Mirza provided the only direct testimony that Brown dealt cocaine. During closing arguments, Brown emphasized that “the key to this whole thing is [Mirza’s] credibility, and that Mirza faced significant jail time, which “he was working off” and which “motivated him to do whatever he could to make Mr. Brown a guilty man.” Id . at 534. In other words, Brown contends that the lost tapes could have helped him prove that Mirza was lying and that all he did was weigh the cocaine for Mirza.
But, as the district court held, Brown’s theory that the audio recordings would have proven that he merely weighed and did not sell any drugs “cannot be squared with the overwhelming evidence that [Brown] was, in fact, guilty of selling drugs to Mirza.” First, and most importantly, Brown confessed to the charges. As the state trial court found after an evidentiary hearing, Brown made a voluntary, knowing, and intelligent waiver of his rights before admitting to the four cocaine sales.
Second, in addition to the confession, the State shored up its case with testimony regarding the control measures employed. Mirza testified that someone always observed the controlled buys. Mirza also stated that the police searched his person and vehicle before and after each purchase and retrieved the drugs and any remaining money. Dare and Spencer confirmed Mirza’s account. Thus, despite the missing tapes, Brown has not shown substantial prejudice. In fact, the lost tapes actually gave Brown the ability to attack an otherwise air-tight case.
Additionally, Brown claims that two of the officers forgot important details about the
investigation—Spencer said he could not remember who searched Mirza and his car on one
instance, and Sergeant Simerly testified that, “being that far back” he could not “remember all
the details” of his surveillance on another occasion. Brown claims that these details were
important to his defense, “which centered on convincing the jury that Mirza could have faked the
sales despite police supervision.” Pet. Br. at 29. Because of their “dimmed memory” Brown
argues that he was less able to cross-examine the officers regarding the supervision of Mirza.
See Dixon
,
Unlike the witnesses in
Maples
,
Dixon
, and
Redd
, Spencer and Simerly were available to
testify. Moreover, they were government witnesses. Thus, contrary to Brown’s assertion, “the
inability of Officers [Spencer and Simerly] to remember particular facts,” such as Spencer’s
failure to recall who searched Mirza on November 8, 2005 (Dare or Spencer), or Simerly’s
failure to remember every stop made by the surveilled vehicle on September 16, 2005, “did not
undermine his defense; rather, it weakened the prosecution’s case.”
Schreane
,
And, unlike the police witness in
Graham
, the memories of Spencer and Simerly were
not so dim; both were able to recall many salient details about the controlled buys. Simerly
testified about his role during the September 16, 2005 buy, as well as the “buy bust” on January
10, 2006. As for the September 16th buy, he remembered that Brown got into Mirza’s vehicle
for a very short period of time and that no one else got in or out of the vehicle. During the
January 10th “buy bust,” Simerly got Mirza out of the vehicle and discovered a plastic bag
containing what he thought was cocaine on the passenger seat where Brown was sitting. Spencer
provided detailed accounts for the three controlled buys in which he participated. In short, the
State offered ample affirmative proof to rebut Brown’s claims of prejudice.
See Doggett
,
In sum, although some of the Barker factors favor Brown, as the district court held, he has not met his burden of establishing substantial prejudice.
E.
Brown also argues that this court does not need to find a violation of the Speedy Trial Clause in order to grant him relief because his trial and appellate counsel were each ineffective for failing to raise speedy-trial arguments. Thus, according to Brown, even if the court determines that Brown was not deprived of his right to a speedy trial, it should still conclude that he was deprived of the effective assistance of trial counsel or, alternatively, appellate counsel.
But the district court did not grant a certificate of appealability on ineffective assistance
of counsel—only on the two delay claims. Under 28 U.S.C. § 2253(c), a state habeas petitioner
seeking to appeal a district court’s final order denying relief must first obtain a certificate of
appealability that “indicate[s] which specific issue or issues” are suitable for appeal. 28 U.S.C.
§ 2253(c)(3). Thus, our review is limited to “the issues which are specified in the certificate of
appealability.”
Searcy v. Carter
,
The district court’s certificate of appealability reads in key part as follows: [R]easonable jurists could debate the Court’s conclusion that Petitioner is not entitled to relief based on his claims that (1) the Offenses-to-Second-Arrest Delay violated his due process rights, and (2) the First-Arrest-to-Trial-Delay violated his Sixth Amendment speedy trial rights. Therefore, the Court will grant a certificate of appealability solely as to these two issues.
This court subsequently denied Brown’s request to expand the certificate of appealability on January 22, 2016.
Brown insists that the district court’s grant of a certificate of appealability on the speedy- trial claim covered the ineffectiveness claims because: (1) he listed his speedy-trial claim and his related ineffective assistance claims in “Ground Three” of his pro-se petition, such that the latter was “subsumed” in the speedy-trial claim; and (2) the district court “accordingly considered all three claims together in the same section of its opinion.”
The district court addressed Brown’s Sixth Amendment speedy-trial claim in Section C. 1. 2. of its Analysis, entitled “The Sixth Amendment Speedy Trial Claim Based Upon the First- Arrest-to-Trial Delay.” In the ultimate paragraph of that section, which concluded that Brown’s “failure to demonstrate prejudice compels the conclusion that his Sixth Amendment right to a speedy trial was not violated,” the court added the following footnote:
To the extent Petitioner raises a freestanding ineffective assistance of counsel claim in his Petition on the ground that his trial and/or appellate counsel failed to invoke his Sixth Amendment speedy trial rights, that claim fails because Petitioner has not shown that the result of the proceedings would have been different if his counsel had raised the issue.
Contrary to Brown’s assertion, we read the district court’s certificate of appealability, along with the companion opinion, as clearly excluding any potential ineffectiveness claims as they pertain to the Sixth Amendment speedy-trial claim. [6] Indeed, the district court did not perceive that it had free-standing ineffectiveness claims related to the speedy-trial claim before it. Instead, it described the issues presented by Brown on habeas as merely:
his trial counsel was ineffective for failing to move for separate trials for the different charges, (2) his statement to police was involuntary, (3) his right to a speedy trial was violated, (4) the trial court admitted a lab report into evidence at trial without the authoring witness’s testimony, and (5) excluding the improperly admitted report, there was sufficient evidence at trial to support Petitioner’s convictions.
And it acknowledged Petitioner’s possible attempt to raise freestanding ineffective-assistance claims in the context of his speedy-trial claim in its analysis, as reflected by footnote 6. Thus, when it indicated in the certificate of appealability that it was limiting the certificate “solely” to the due-process and speedy-trial claims, it was not overlooking Brown’s ineffective assistance- of-counsel claims but clearly rejecting them as not meriting further review by this court. Thus, they are not properly before us for review.
V.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
[1] Although the district court granted a certificate of appealability on two issues, due-process delay and Sixth Amendment speedy-trial delay, Brown presented only the speedy-trial claim to this court. He has therefore abandoned the due-process-delay issue on appeal. See United States v. Johnson , 440 F.3d 832, 845-46 (6th Cir. 2006).
[2] “Gerald Jackson” was also known as “Mickey Jackson.”
[3] Although it is partially blacked out, this document also contains an entry dated January 10, 2006 listing the same four charges.
[4]
Although the parties do not dispute it, this court has an independent obligation to determine the proper
standard of review.
See Moritz v. Lafler
,
[5] Notably, the State does not assert that the filing of a criminal complaint and arrest warrant fail to trigger the Speedy Trial Clause protections. Instead it argues that “[t]he seeming issuance of a complaint or an arrest warrant . . . did not matter because the record indicates that Brown had no idea about them until his arrest in September 2007.” Resp. Br. at 27. In other words, according to the State, “[t]he facts of Brown’s case, up until September 24, 2007, do not implicate the interests protected by the right to a speedy trial.” Id .
[6] Because the district court clearly indicated that it did not wish to certify any freestanding ineffective- assistance-of-counsel claims, any pleading leniency Brown might receive as a pro se petitioner (which he was when he filed his habeas petition) is unnecessary.