
    Shawn Malone KHALIFA, Petitioner-Appellant, v. Brenda M. CASH, Warden, Respondent-Appellee.
    No. 12-56230.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Oct. 8, 2014.
    Filed Nov. 25, 2014.
    Dissent Amended Feb. 19, 2015.
    
      James W. Whitehouse, Esquire, Law Offices of James W. Whitehouse, San Juan Capistrano, CA, for Petitioner-Appellant.
    Kevin Vienna, Supervising Deputy Attorney General, AGCA-Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.
    Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
   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 and federal rights to a speedy trial. See 28 U.S.C. § 2254(b)(3) (2012) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”). Consequently, the parties agree Khalifa’s claim has been exhausted and we are satisfied that we have jurisdiction to reach the merits of that claim.

The parties dispute whether the California courts reached the merits of Khalifa's Sixth Amendment claim and, as a result, whether that claim must satisfy the restrictive standards imposed by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA). Normally, when “a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits____” Johnson v. Williams, — U.S. -, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013). Though “that presumption can in some limited circumstances be rebutted,” see id., we need not decide whether Khali-fa can rebut the presumption because his Sixth Amendment claim fails even under de novo review. To that end, when “a state court has not reached the merits of a properly raised issue, we must review it de novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). But even reviewing Khalifa’s constitutional claim de novo, AEDPA still mandates that “factual determinations by the state court are presumed correct and can be rebutted only by clear and convincing evidence.” Id. at 1168.

We apply the Barker v. Wingo four-part balancing test to determine whether a petitioner’s Sixth Amendment right to a speedy trial has been violated. 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The four factors to be weighed are: (1) length of delay, (2) reason for the delay, (3) the forcefulness of the criminal defendant’s assertion of his speedy trial right, and (4) prejudice to the defense. Id. The delay was clearly lengthy and thus presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). However, the second and third factors are neutral because Khalifa objected to only about eight months of the delay, and all but five weeks of the delay during those eight months was attributable to Khalifa’s co-defendants’ continuances. Cf. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Thus, the test hinges on whether Khalifa suffered any prejudice as a result of the lengthy delay. See, e.g., Doggett, 505 U.S. at 657-58, 112 S.Ct. 2686 (explaining that the length of and reason for the delay must be considered in determining prejudice).

At oral argument, counsel for Khalifa conceded that AEDPA applies, but argued the California Court of Appeal made a legal error in finding no prejudice. We disagree. Khalifa’s strongest argument that the state court committed legal error by not finding prejudice is his claim that he was deprived of the opportunity to have the Castillo brothers, two eyewitnesses, testify at trial in an attempt to contradict the testimony of his co-defendant, Mark Gardner. But Khalifa is unable to show, beyond mere speculation, that the Castillos would have said anything favorable enough to establish prejudice to Khalifa from their failure to testify at trial. See United States v. Coronar-Verbera, 509 F.3d 1105, 1113 (9th Cir.2007) (“[W]hen a defendant fails to make a specific showing as to what a[ ] witness would have said, any argument of prejudice is pure conjecture.”).

Furthermore, to the extent Khalifa attempts to prove prejudice by pointing to alleged inconsistencies between the Castil-los’ preliminary hearing testimony and Gardner’s testimony at trial, the California Court of Appeal made a factual determination that the testimonies were mostly consistent. We agree with that assessment. Under AEDPA review, Khalifa has not pointed to clear and convincing evidence showing otherwise. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir.2004) (“State decisions applying law to facts are governed by [AEDPA deference]; however,- factual findings underlying the state court’s conclusion on the mixed issue are accorded a presumption of correctness.” (emphasis added)); Seidel v. Merkle, 146 F.3d 750, 753 (9th Cir.1998) (prejudice analysis for Sixth Amendment ineffective assistance of counsel claim presents a mixed question of law and fact). Based on this deferential view of the facts, we hold the state court drew the proper legal conclusion: there are not enough inconsistencies between the testimonies of the Castillo brothers and Gardner to make out a showing of prejudice to Khalifa by failure of the Castillos to testify at trial. Therefore, Khalifa cannot show prejudice from the delay in bringing him to trial, fatally undermining the alleged violation of his Sixth Amendment right to a speedy trial.

Khalifa’s claim for habeas relief was properly denied.

AFFIRMED.

PREGERSON, Circuit Judge,

dissenting:

Shawn Khalifa 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 speedy trial rights for eight consecutive months. A delay of eight months on this record is most likely presumptively prejudicial. See United States v. Gregory, 322 F.3d 1157, 1162 n.3 (9th Cir.2003). This third factor weighs in favor of Khalifa.

Finally, I submit that Khalifa was prejudiced by the eight month delay. Prejudice should be assessed by considering “the interests of defendants which the speedy trial right was designed to protect ...: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. Here, the disposition does not explicitly touch upon the first two interests. Khalifa was prejudiced by his pretrial incarceration. He spent over three years in jail awaiting trial. Khalifa was arrested on January 30, 2004, three days after the crime was committed and about two months beyond his fifteenth birthday. His trial started on September 17, 2007, a couple months before his nineteenth birthday. In Barker, the Supreme Court determined that “time spent in jail awaiting trial has a detrimental impact on the individual.” Id. Khalifa’s three-and-a-half year pretrial incarceration and the anxiety it caused him — a teenager awaiting trial for felony murder — weigh in favor of finding that Khalifa was prejudiced by the delay.

The delay also impaired, and thus prejudiced, Khalifa’s defense because the only non-biased eyewitnesses, one of whom was Erick Castillo, left the country and moved to Mexico during the delay. See Id. at 532, 92 S.Ct. 2182 (“If witnesses ... disappear during a delay, the prejudice is obvious.”). Because lengthy delays often cause the loss of exculpatory evidence and testimony, “impairment of one’s defense is the most difficult form of speedy trial prejudice to prove.” Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). For this reason, “consideration of prejudice is not limited to the specifically demonstrable.” Id.

Further, the California Court of Appeal’s factual determination that witness Castillo’s preliminary hearing testimony was consistent with co-defendant Mark Gardner’s testimony was refuted by clear and convincing evidence. Khalifa’s appellate brief demonstrated that Castillo’s preliminary hearing testimony varied from Gardner’s testimony on several points; most notably co-defendant Gardner testified to facts that made him appear less culpable. Gardner testified that he was only in the side yard briefly before waiting in front of the house for Khalifa, whereas witness Castillo saw Khalifa and Gardner leave the side yard together. The jury may have discounted Gardner’s account as biased if Castillo had testified at trial because it appears as if Gardner may have twisted the facts to minimize his involvement. The jury might have taken this into consideration when weighing Gardner’s credibility. Co-defendant Gardner also portrayed Khalifa as having a more active role in the crime by testifying that Khalifa exited the home only seconds before Rivera and Pena (the men who beat the victim to death), not five to ten minutes before as explained by Castillo. Gardner’s version makes it more likely that Khalifa was in the home during the victim’s murder, however, Castillo’s account presents an issue as to Khalifa’s presence during and his knowledge of the killing. Had the jury heard these varied accounts it would have had to weigh the credibility of both witnesses and it is likely there would have been more discussion about co-defendant Gardner’s motivations for testifying. Likely, there also would have been a more in-depth consideration of the extent of Khalifa’s involvement. For these reasons, the loss of Castillo as a witness at trial prejudiced Khalifa.

Three of the four Barker factors weigh in Khalifa’s favor and support a finding of a violation to his right to a speedy trial under the Sixth Amendment. Therefore, Khalifa’s habeas petition should have been granted.

The only issue before this panel was whether Khalifa was denied his right to a speedy trial. Before the state courts and the district court, Khalifa challenged the constitutionality of his 25 years to life sentence as unconstitutionally cruel and unusual on account of his age and his relative culpability for the murder. Before our court, Khalifa petitioned for a certificate of appealability challenging the constitutionality of his sentence as cruel and unusual under the Eighth Amendment, but the motion was denied. Docket 3. Even the deputy attorney general in this case acknowledged the harshness of Khalifa’s sentence for a kid who went into a house and filled his pockets with candy.

Khalifa played the relatively minor role of lookout during the robbery of an elderly man. Much of the evidence against Khali-fa came from Gardner, one of Khalifa’s co-defendants who testified for the prosecution in exchange for a lighter sentence. Gardner testified that the night of the offense, he was hanging out with Rivera, Pena, and Khalifa. Khalifa was the youngest at 15 years of age. The group began discussing their need for money and someone suggested robbing an elderly neighbor.

The four boys walked toward the victim’s home, Rivera and Pena in front and Gardner and Khalifa following behind. Gardner explained that Rivera and Pena told Gardner and Khalifa to wait outside while Rivera and Pena went up to the victim’s front door and entered. Gardner testified that he and Khalifa went through a gate leading to the victim’s backyard. Gardner also testified that Khalifa entered the victim’s home, was inside the kitchen for a couple minutes, and looked through the kitchen drawers. Khalifa took candy from the victim’s kitchen and then left through the back door.

There was no evidence that Khalifa saw the victim being beaten, but the evidence indicates that Khalifa may have heard the victim moan. Khalifa and Gardner then returned to the front of the home. After killing the homeowner, Rivera and Pena came out the front door and drove down the street in the victim’s car. Khalifa got in the car at the prompting of Rivera and Pena.

Khalifa was tried and convicted of first degree felony murder in connection with his alleged participation in the burglary and robbery. He was sentenced to 25 years to life, the most severe punishment available for a 15 year old convicted of first degree murder in California. See CaLPe-nal Code § 190.5. In fact, Khalifa received the same maximum sentence he would have received had he entered through the front door and participated in the killing of the victim.

He had just turned 15 at the time of the crime. He did not kill anyone and there is no evidence that he could have foreseen that the victim would be killed; he entered the victim’s kitchen at the rear of the house and took some candy while two older boys robbed and beat the victim in the living room in the front of the house. He was sentenced to 25 years to life.

The Supreme Court’s recent decisions tell us that “children are constitutionally different from adults for purposes of sentencing.” We also are told by the Court that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2468, 183 L.Ed.2d 407 (2012) (quoting Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2027, 176 L.Ed.2d 825 (2010)). Further, “compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed.” Graham, 560 U.S. at 68, 130 S.Ct. 2011 (internal quotations omitted).

In addition, as Justice Breyer notes in his concurrence in Miller, the felony murder rule “traditionally attributes death caused in the course of a felony to all participants who intended to commit the felony, regardless of whether they killed or intended to kill. This rule has been based on the idea of transferred intent; the defendant’s intent to commit the felony satisfies the intent to kill required for murder.” Miller, — U.S. at-, 132 S.Ct. at 2476 (internal quotations and citations omitted). Justice Breyer further noted that the “theory of transferring a defendant’s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively.” Id. (internal citation omitted).

Given Khalifa’s age and his minor involvement in the crime, his sentence appears unusually harsh and cruel. I believe that this issue should have been considered. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     
      
      . Khalifa was just two months beyond his fifteenth birthday when the crime occurred. He and Mark Gardner were acting as lookouts for a burglary while two older boys entered the victim’s home through the front door. Khalifa allegedly snuck through the’ backdoor and took a handful of candy from the victim’s kitchen. The older boys beat the elderly homeowner to death. Khalifa was found guilty of first degree felony murder and sentenced to twenty-five years to life. Based on Khalifa's limited participation and his status as a juvenile, this sentence appears unusually harsh. As the Supreme Court has found, children like Khalifa lack maturity and have "an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.” Miller v. Alabama,-U.S. -, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). Further, the brain of a fifteen year old is "not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.” Id. at 2464, n.5 (internal citations omitted).
     