Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1988)

MEMORANDUM^*

Duane V. Johnson ("Johnson"), an Arizona state prisoner, appeals pro se the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Johnson asserts that an excessive pretrial delay denied him his statutory and constitutional rights to a speedy trial and due process. We affirm.

BACKGROUND

The armed robbery offense for which Johnson is serving time in an Arizona prison facility took place on February 5, 1983 in Arizona. On February 8, 1983, petitioner was arrested by Arizona authorities on a fugitive's warrant for a probation violation in Utah. Appellant waived extradition and was transported to Utah on February 17, 1983.

On March 3, 1983, a complaint was filed in Arizona charging petitioner with one count of armed robbery. A warrant was issued for petitioner's arrest on that same date; however, it was not executed until January 25, 1985, approximately 22 months later. Apparently, due to the misspelling of petitioner's name in the NCIC computer as "Duare Johnson" at the time he was booked on the Utah fugitive warrant, no record of petitioner's incarceration in Utah was indicated on March 4, 1983 when the information from the Arizona arrest warrant was transmitted into the NCIC system. On September 11, 1984, Johnson was released on parole from the Utah prison. On September 26, 1984, the NCIC computer finally identified petitioner's record.

Thereafter, petitioner was arrested in Utah on January 25, 1985 in connection with the Arizona offense. Following extradition proceedings, Johnson was returned to Arizona. Johnson waived his preliminary hearing on February 19, 1985. On February 27, 1985, an information was filed.

On April 23, 1985, Johnson filed a motion to dismiss on the grounds that he was denied a speedy trial under the sixth amendment of the United States Constitution and under Rule 8.3(a) of the Arizona Rules of Criminal Procedure. After extensive hearings, the trial court ultimately denied petitioner's motion.

Subsequently, on June 10, 1985, Johnson submitted the question of his guilt or innocence of the crime charged to the trial court, sitting without a jury and based exclusively on the police records. The court found Johnson guilty and sentenced him to a presumptive prison term of ten and one-half years.

The Arizona Court of Appeals affirmed Johnson's conviction and sentence on April 8, 1986. His later appeal to the Supreme Court of Arizona and his petition for post-conviction relief filed in Maricopa Superior Court also proved unsuccessful.

On October 25, 1987, Johnson petitioned the district court for habeas relief, advancing his speedy trial claims. On August 4, 1988, the district court granted respondents' motion for summary judgment and denied Johnson's petition for writ of habeas corpus. Petitioner timely appealed.

DISCUSSION

Petitioner raises the following arguments in favor of reversal: (1) that the delay between the filing of the Arizona complaint and his subsequent prosecution some twenty-two months later amounted to a statutory and constitutional violation of his speedy trial rights; (2) that the delay also amounted to a due process violation; and (3) that the district court's interpretation of Barker v. Wingo was erroneous.

* Speedy Trial

Petitioner asserts that a balancing of four factors identified in Barker v. Wingo, 407 U.S. 514, 530 (1972), demonstrates that his sixth amendment speedy trial rights were abrogated. The government counters that the analysis of Barker is inapposite because the delay petitioner complains of was essentially a preindictment delay.

We agree with the government that Barker is not controlling. The protections of the sixth amendment's Speedy Trial Clause do not attach until a person has been "accused" of a crime. United States v. Marion, 404 U.S. 307, 313 (1971). A person does not become an accused until a criminal prosecution is initiated against him. Id. While the protection afforded by the sixth amendment's speedy trial provision may be invoked prior to the filing of an information, indictment, or other formal charge, it does not extend to the period preceding arrest. Id. at 321.

The delay petitioner complains of occurred between the date the complaint was filed and the date of his arrest. Petitioner's position is that the filing of a criminal complaint against him by Arizona state authorities on March 3, 1983, initiated his prosecution and therefore activated the constitutional speedy trial protection. The Supreme Court's opinion in Marion implicitly rejects petitioner's argument that his criminal prosecution, for sixth amendment purposes, began at the time the complaint which formed the basis for the arrest warrant was filed. Therefore, we find that Johnson has failed to establish a cognizable sixth amendment speedy trial claim.

Petitioner also contends on appeal that the government's delay amounted to a violation of his speedy trial rights under Rule 8.3(a) of the Arizona Rules of Criminal Procedure. "We may not consider, as independent grounds for habeas corpus, arguments that do not raise federal claims." Guzman v. Morris, 644 F.2d 1295, 1297 (9th Cir. 1981). Therefore, any violation of Johnson's statutory right to a speedy trial is not grounds for federal habeas relief.

II

Due Process

Delays occurring prior to arrest or indictment are evaluated under a due process standard rather than under a sixth amendment speedy trial analysis. U.S. v. MacDonald, 456 U.S. 1, 7 (1982); U.S. v. Henry, 615 F.2d 1223, 1232 (9th Cir. 1980). A two-pronged test has been developed to determine whether a preindictment delay rises to the level of an unconstitutional denial of due process. U.S. v. Lovasco, 431 U.S. 783, 790 (1977); U.S. v. Moran, 759 F.2d 777, 780 (9th Cir. 1985), cert denied, 474 U.S. 1102 (1986). First, the accused must establish that the delay caused him "actual prejudice." Moran, 759 F.2d at 780-781. Second, the accused must demonstrate that the length of the delay, when weighed against the government's asserted reasons for the delay, offends the "fundamental conceptions of justice which lie at the base of our civil and political institutions." U.S. v. Valentine, 783 F.2d 1413, 1416 (9th Cir. 1986).

We find that petitioner has not satisfied even the first prong of the test. Petitioner argues that the government's negligent delay in prosecuting him resulted in prejudice to his case because: (1) he was deprived of an alibi witness, and (2) had he been tried in a timely manner he may have received concurrent sentences for the Utah and Arizona offenses. Both of these assertions of prejudice are speculative at best. The statement in John Stull's affidavit that he "probably could have remembered" the exact time he and petitioner left their apartment if questioned earlier does not conclusively establish actual prejudice. Moreover, petitioner's bare allegation that he may have been entitled to concurrent sentences, without more, is insufficient to establish a denial of due process. See Valentine, 783 F.2d at 1417.

III

District Court's Interpretation of Barker v. Wingo.

Since we have already determined above that Barker is not controlling here, we need not address petitioner's final argument.

AFFIRMED.