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`v.
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
`
`* * *
`
`
`
`
`Petitioner,
`
`Case No. 3:16-cv-00336-MMD-CSD
`ORDER
`
`CHARLES SHEA EUBANKS,
`
`
`
`
`RENEE BAKER,1 et al.,
`
`
`Respondents.
`
`
`I.
`
`SUMMARY
`This matter is before the Court for disposition of the merits of the remaining
`grounds of Petitioner Charles Shea Eubanks’s counseled Third Amended Petition for Writ
`of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 43 (“Petition”).)2 In 2013, a Nevada
`jury convicted Eubanks of first-degree murder with use of a deadly weapon, attempted
`murder with use of a deadly weapon, and attempted robbery with use of a deadly weapon.
`(ECF No. 27-1.) He was sentenced, among other things, to life imprisonment without the
`possibility of parole. (Id.) In his Petition, Eubanks alleges the following: his right to a
`speedy trial was violated, insufficient evidence supports his convictions, he received a
`grossly disproportionate sentence compared to his codefendants, he received ineffective
`assistance of counsel, the State suppressed material impeachment evidence, and
`cumulative error. For the reasons discussed below, the Court denies the Petition and
`grants a Certificate of Appealability for Grounds 5(3), 5(7), 5(9), and 6(C)(3).
`
`
`1The Nevada Department of Corrections’ inmate locator page indicates Eubanks
`is incarcerated at High Desert State Prison, where Jeremy Bean is the warden. The Clerk
`of Court is directed to substitute Jeremy Bean for respondent Renee Baker. See Fed. R.
`Civ. P. 25(d).
`
`2The Court dismissed Ground 3 of the Petition as not cognizable. (ECF No. 67.)
`
`

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`II.
`
`BACKGROUND3
`
`Initial Contact Between Eubanks and Maxwell
`A.
`On Friday, April 29, 2011, Eubanks met Michael Maxwell, Jr., at the Nugget casino
`in Pahrump, Nevada; although they had just met that day, they went to Las Vegas
`together, and upon their return, Maxwell invited Eubanks to stay at his residence. (ECF
`Nos. 23 at 67, 73, 79-80; 80-1 at 26-27.) Two days later, on Sunday, May 1, 2011,
`Maxwell requested that Eubanks accompany Troy Jackson to recover a debt from
`Michael Frasher. (ECF No. 23 at 66.) As Maxwell’s “enforcer,” Jackson sold drugs,
`collected tax payments for protection, and beat people. (ECF No. 80 at 80-81.) Tiffany
`Rubio spent time with Maxwell and Eubanks that weekend and heard that Eubanks might
`work for Maxwell doing the same thing as Jackson. (ECF No. 80-1 at 36-37.) Maxwell
`gave two knives to Eubanks and $20 to Eubanks, Jackson, and Jackson’s girlfriend,
`Victoria Garcia, to buy gloves and cigarettes, which they purchased on the way to visit
`Frasher. (ECF Nos. 23 at 66-67, 69; 80 at 61-62, 101-02, 124.) Maxwell told Jackson to
`“get [Frasher]” if he had a chance to do so. (ECF No. 80 at 62-63.)
`B.
`Stabbing of Frasher and Bell
`Jackson learned Frasher was in a camper at Antoinette Bell’s residence and
`Garcia drove them to the camper in Maxwell’s white van. (ECF Nos. 79-6 at 133-34; 80
`at 53, 58, 94.) Garcia overheard Eubanks tell Jackson he would “do it” if Jackson was
`unable. (ECF No. 80 at 118.) Garcia saw Eubanks holding knives under his armpits and
`believed Jackson had a pocketknife. (Id. at 98, 105.) Jackson discovered Frasher had no
`money or drugs. (Id. at 59.) Maxwell telephoned while they were with Frasher and told
`Eubanks “To handle his business and get back home.” (ECF Nos. 23 at 69; 80 at 60-61.)
`
`
`3The Court summarizes the relevant state-court record solely as background for
`consideration of the issues in this case. The Court makes no credibility or factual findings
`regarding the truth or falsity of evidence or statements of fact in the state court. No
`assertion of fact made in describing statements, testimony, or other evidence in the state
`court constitutes a finding by this Court. Failure to mention a specific piece of evidence
`or category of evidence does not signify the Court overlooked it in considering the issues.
`2
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`Eubanks told Jackson and Garcia that Maxwell gave the green light to kill Frasher.
`(ECF No. 80 at 61, 85, 109-10.) Jackson, Frasher, Bell, and Eubanks, entered Bell’s
`camper, and, according to Jackson, Jackson stabbed Bell while Eubanks killed Frasher.
`(ECF No. 80 at 55-56, 61, 63.) Jackson said Eubanks “kneeled down beside Mike
`Frasher’s body stabbing him in his cage” and kept stabbing Frasher because Frasher was
`“flinching.” (Id.) Jackson said he told Eubanks that Bell would not die, and Eubanks
`“stepped over Michael Frasher, stabbed [Bell] twice in her stomach,” and resumed
`stabbing Frasher. (Id. at 63, 82.) After Bell stopped moving, and Eubanks “had finished
`off [Frasher],” Jackson and Eubanks left. (Id. at 64-65.)
`Bell ran to a neighbor for help. (ECF Nos. 79-6 at 158; 79-7 at 41.) When the Nye
`County Sheriff arrived, Bell was asked, “Who did this?” and she replied, “Troy [Jackson].”
`(ECF No. 79-7 at 41.) The Sheriff found Frasher in the camper bleeding and gasping for
`air; Frasher later died at the hospital from multiple stabs and incise wounds to his head,
`neck, and torso. (ECF Nos. 79-6 at 54; 79-7 at 102.) Bell survived a laceration to her
`throat and 11 stab wounds to her back, chest, abdomen, legs, and arms. (ECF No. 79-6
`at 82.)
`Bell’s Conflicting Statements
`C.
`Nye County Sheriff’s Office Detective David Boruchowitz interviewed Bell at the
`hospital on May 4, 2011. (ECF No. 79-7 at 183-85.) Bell identified Jackson as her attacker
`and said he had a flip-blade knife. (Id.) Bell said Jackson stabbed Frasher. (Id.) When
`asked how Bell knew Jackson stabbed Frasher, Bell replied that Jackson was the only
`one standing there at the time. (Id. at 185-86.) At trial, Boruchowitz opined that Bell’s
`response implied she did not see Jackson stab Frasher. (Id.) However, Boruchowitz
`agreed that Bell unequivocally stated Jackson stabbed her and Frasher. (ECF No. 23 at
`46.)
`
`Nye County Sheriff’s Detective Michael Eisenloffel conducted a follow-up interview
`of Bell at the hospital on May 5, 2011. (Id. at 103-05, 109). Bell told Eisenloffel, “They all
`came in. They stabbed [Frasher] in my camper, two guys. When they stabbed him, they
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`noticed me looking for my knife, stabbed me 26 times.” (Id.) Bell twice stated, “I know it
`was both of them.” (Id. at 107.) However, Eisenloffel agreed that Bell more than once
`stated Jackson was the only person with a knife and it was Jackson who stabbed Frasher.
`(Id. at 166-67.) Bell also told Eisenloffel the knife was as big as Jackson’s hand, was
`bloody before Jackson attacked her, and she thought Eubanks just stood there. (Id.)
`Eisenloffel admitted he testified at the preliminary hearing that Bell identified Jackson as
`the person who stabbed her and Frasher. (Id. at 168-69.)
`Bell testified at trial that she knew Jackson but never saw Eubanks until the day of
`the stabbings. (ECF No. 79-6 at 149-50, 159.) Bell said she “got stabbed by Troy
`Jackson.” (Id. at 157, 159.) She said “Eubanks was just standing there by the door
`watching the whole entire time. I’m not sure if he actually had—if he actually got [Frasher].
`I don’t think he did.” (Id. at 156.) However, Bell later clarified “he,” meant “Jackson.” (Id.)
`On cross-examination, Bell agreed she told a detective that Jackson was the only
`person who had a knife during the attack, and she saw Jackson repeatedly stab Frasher,
`then stab her, and then stab Frasher a few more times to ensure he was dead. (ECF No.
`79-7 at 39, 45-48.) She told the detective she never saw Eubanks with a knife or with any
`blood on him. (Id.) She said she told the detective she knew Jackson stabbed Frasher
`because Jackson “was the only one with a knife at that point.” (Id. at 42-43.) She told the
`detective Eubanks stood next to Jackson but “he did not have any objects in his hand.”
`(Id.) Bell agreed that she consistently testified in other proceedings that it was Jackson
`who stabbed Frasher. (Id. at 45-48.)
`On redirect examination, Bell testified her memory was better soon after the event.
`(Id. at 49.) She agreed she was heavily medicated and breathing through a tube during
`her first interview with the detective at the hospital. (Id. at 58.) She said Frasher “was
`already down” when she looked up and saw Jackson stabbing her. (Id. at 53-54.) She
`saw Jackson stab Frasher as Jackson left the camper. (Id. at 57.) She “slightly” recalled
`previously testifying she did not see who stabbed Frasher. (Id.)
`///
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`Eubanks’ Statements
`D.
`Detective Boruchowitz learned Garcia and Jackson were involved in the stabbings
`and drove a white van that might be located at Maxwell’s residence. (ECF No. 79-7 at
`169-70, 173.) At Maxwell’s residence on the night of the stabbings, Jackson, Eubanks,
`and Garcia, told Boruchowitz they never left the residence that day and knew nothing
`about the stabbings. (Id. at 174-76.)
`After his arrest, Eubanks gave an interview in the presence of his counsel, the
`prosecutor, and the prosecutor’s investigator, in which he confessed he previously gave
`versions of the facts to distance himself from the incident. (Id. at 202.) Eubanks confessed
`they went to rob Frasher, but Frasher and Bell had nothing for them to steal and Jackson
`punched Frasher while Eubanks ran away. (ECF Nos. 23 at 38-40; 79-7 at 202-03; 80-1
`at 70-71.) Eubanks said that, when they returned to Maxwell’s residence, the first thing
`Maxwell asked was whether they had his money, and Maxwell was “happy with the results
`and how it went.” (ECF Nos. 23 at 38; 79-7 at 203-04.) Eubanks said they burned
`evidence in the firepit and cleaned the van. (ECF No. 79-7 at 200-01, 204.)
`
`Witness Statements
`E.
`Allessandra Vich testified she was Eubanks’s girlfriend at the time of the stabbings
`and that soon after his arrest, she asked Eubanks if he murdered someone; he replied,
`“yes,” and stated he murdered “the guy.” (ECF No. 23 at 125, 134-35.) Codefendant Rubio
`testified that she asked whether Bell and Frasher were “dead,” and Eubanks said, “Yes.
`It was easy,” and made a slashing motion across his throat. (ECF No. 80-1 at 37.) Rubio
`heard Jackson say he could not “finish it,” and Eubanks had to finish it. (Id. at 38.)
`Codefendant Maxwell testified Eubanks told him he put a knife through Frasher’s head
`and tried to “finish off” Bell after Jackson told Eubanks that Bell would not die. (ECF No.
`23 at 71.) Maxwell testified that, after they were arrested, Eubanks told him, “I thought
`you wanted me to kill him.” (Id. at 70.)
`Johnny Dowling testified he was acquainted with Frasher. (Id. at 50, 54-55.)
`Dowling, who was himself facing felony charges, testified based on an agreement with
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`the State. (Id. at 57-58, 61-64.) In exchange for “continued truthful testimony” and guilty
`pleas to two possession charges, he avoided exposure to a life sentence as a habitual
`criminal, enjoyed dismissal of several cases against him, and was released on his own
`recognizance. (Id.) Dowling claimed that, while he was incarcerated with Eubanks,
`Eubanks told Dowling he murdered Frasher by burying a knife in his eye or head and that
`he carried Frasher around by the knife handle while Jackson stabbed Bell. (Id. at 50-52.)
`Dowling told Eubanks about his friendship with Bell, that Bell would appreciate a letter
`from Eubanks, and that Dowling would deliver a letter to Bell for Eubanks. (Id. at 55-57,
`62-63.) When Eubanks provided Dowling with a letter addressed to Bell, Dowling instead
`gave it to law enforcement. (Id.) Dowling said he came forward about Eubanks because
`what happened was “really disturbing” and claimed he would have testified even without
`a deal. (Id. at 58-59.)
`Witness Karisma Garcia’s4 existing plea agreement was also amended to provide
`that, in exchange for truthful testimony, the State would recommend probation and
`release with a suspended sentence. (ECF Nos. 23 at 201, 206-07; 80 at 44.) Karisma
`claimed that, while incarcerated with Eubanks, Eubanks confessed during an “open
`conversation” with other inmates that he stabbed Frasher. (ECF No. 23 at 201-05.)
`Karisma heard Eubanks state that he was hitchhiking to Las Vegas when Maxwell
`befriended him, and Eubanks ended up buying gloves, and “in a trailer stabbing
`somebody.” (Id.) Karisma testified Eubanks provided a list of witnesses that had been
`typed by the District Attorney’s Office on a charging document, which Karisma delivered
`to the prosecutor’s investigator, and Eubanks “wanted witnesses gone” and “wanted
`practically the judges gone, D[A]s gone, cops gone,” because Eubanks wanted “to beat”
`the case. (ECF Nos. 80 at 29-32, 39-41, 47; 80-1 at 82-83.) Eubanks told Karisma to get
`that list out, and that “the right people would get the paperwork once it was out, and it
`would be taken care of.” (ECF No. 80 at 47-48.)
`
`
`4Karisma Garcia is referred to as “Karisma” to avoid confusing him with
`codefendant Victoria Garcia.
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`Andrew Kaufman, incarcerated in federal prison, was previously incarcerated with
`Eubanks and testified that Eubanks told him he stabbed Frasher in the head over a drug
`debt, stabbed Bell, and would have gotten away with it had Jackson done as good a job
`as Eubanks. (ECF No. 80-1 at 94-96.) In exchange for Kaufman’s testimony, the State
`agreed to tell the United States Attorney about Kaufman’s cooperation, and Kaufman
`hoped it would help his federal case. (Id. at 97-98.)
`Danny Jarvis testified he met Frasher in 2005 and Frasher once paid rent for
`Jarvis’s girlfriend. (ECF No. 80 at 130, 134.) Jarvis testified that while incarcerated with
`Eubanks, Eubanks told him he went to collect a debt from Frasher, Frasher did not pay
`it, and Eubanks stabbed Frasher inside a camper “so hard that the handle broke off the
`knife.” (Id. at 132-35.) Jarvis said Eubanks worried his admission to his ex-girlfriend was
`recorded during a telephone conversation. (Id. at 151-52.) Jarvis said Eubanks believed
`Kaufman might give deposition testimony against him. (Id. at 149-50.) Eubanks knew
`Jarvis could obtain the address of Kaufman’s wife, and asked for it, but Jarvis refused.
`(Id. at 150-51.) Jarvis said Eubanks was having his ex-girlfriend “taken care of” and asked
`if word could be sent to federal prison to “address” Kaufman. (Id.)
`F.
`Forensic Evidence
`At Maxwell’s residence following the stabbings, Maxwell devised a plan to “keep
`[their] mouth[s] shut” and claim they were at his house all day and had a barbecue. (ECF
`No. 80 at 50-52, 65.) Jackson dug a barbeque pit and he and Eubanks burned gloves,
`knives, telephones, and clothes in the fire. (Id. at 67-69.) Rubio and another individual
`attempted to sanitize the van. (Id. at 70-71.)
`When Jackson and Eubanks were arrested in the early morning hours after the
`stabbings, Detective Eisenloffel observed that neither wore shoes and they had a dark-
`colored sooty substance on their hands. (ECF No. 23 at 91-95, 103, 151, 160-61.) The
`front passenger floorboard of Maxwell’s van, where Jackson sat on the way to and from
`stabbing Frasher and Bell, bore Frasher’s blood and fragments of cloth or tissue as if
`used to clean the carpet. (ECF Nos. 79-7 at 15-17, 80-86, 91-92, 96; 80 at 114.)
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`A fire pit at Maxwell’s residence contained (1) a folding-type knife (State’s Trial
`Exhibit 133); (2) two dagger blades (State’s Trial Exhibits 10 and 11); (3) apparent burned-
`out remnants of a cellular telephone; and (4) burned clothing remnants, including shoe
`eyelets. (ECF Nos. 23 at 17-18; 79-7 at 195-96, 210-11.) Police found an additional knife
`(State’s Trial Exhibit 138) bearing Jackson’s DNA in blood on the handle. (ECF No. 79-7
`at 22-24.) Maxwell identified State’s Trial Exhibits 10 and 11 as blades belonging to the
`knives he gave to Eubanks. (ECF No. 23 at 67-69.) Jackson identified photographs of the
`knife blades as depicting those Eubanks used to kill Frasher and said he saw Eubanks
`throw them into the fire pit. (ECF No. 80 at 70.) Eubanks’s DNA was not on the blades,
`but this was expected as the blades were exposed to fire. (ECF No. 79-7 at 18-22.)
`Forensic Pathologist Dr. Lisa Gavin could not definitively state that any of the four
`knives was the weapon used on Frasher. (Id. at 150, 152.) Gavin compared Frasher’s
`wounds with State’s Trial Exhibits 10, 11 and 133, and concluded each could have caused
`some or all of Frasher’s injuries. (Id. at 143-44.) The fourth knife, State’s Exhibit 139, was
`a pocketknife whose characteristics did not match Frasher’s wounds. (Id. at 144-47.)
`Gavin opined it more probable that State’s Trial Exhibits 10, 11 and 133 caused Frasher’s
`injuries, and, although it was possible the pocketknife caused incised wounds, including
`those to the face, it was unlikely it caused stab wounds. (Id. at 148-49, 152.)
`III.
`GOVERNING LEGAL STANDARDS
`Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), if a state court
`has adjudicated a habeas corpus claim on its merits, a federal court may only grant
`habeas relief with respect to that claim if the state court’s adjudication “resulted in a
`decision that was contrary to, or involved an unreasonable application of, clearly
`established [f]ederal law, as determined by the Supreme Court of the United States”; or
`“resulted in a decision that was based on an unreasonable determination of the facts in
`light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
`A state court’s decision is contrary to clearly established Supreme Court
`precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court applies a rule
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`that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state
`court confronts a set of facts that are materially indistinguishable from a decision of [the
`Supreme] Court and nevertheless arrives at a result different from [Supreme Court]
`precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529
`U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state
`court’s decision is an unreasonable application of clearly established Supreme Court
`precedent within the meaning of 28 U.S.C. § 2254(d)(1) “if the state court identifies the
`correct governing legal principle from [the Supreme] Court’s decisions but unreasonably
`applies that principle to the facts of the prisoner’s case.” Id. (quoting Williams, 529 U.S.
`at 413). “The ‘unreasonable application’ clause requires the state court decision to be
`more than incorrect or erroneous . . . [rather] [t]he state court’s application of clearly
`established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-
`10, 412) (internal citation omitted). State courts need not be aware of or cite Supreme
`Court cases, “so long as neither the reasoning nor the result of the state-court decision
`contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
`“A state court’s determination that a claim lacks merit precludes federal habeas
`relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
`decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado,
`541 U.S. 652, 664 (2004)). “[E]ven a strong case for relief does not mean the state court’s
`contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75). See
`also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult-
`to-meet” and “highly deferential standard for evaluating state-court rulings which
`demands that state-court decisions be given the benefit of the doubt”) (internal citations
`omitted). However, deference does not by definition preclude relief. See Miller-El v.
`Cockrell, 537 U.S. 322, 340 (2003). A petitioner has the burden of proof. See Cullen, 563
`U.S. at 181 (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
`///
`///
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`IV.
`
`DISCUSSION
`A.
`Ground 1—Speedy Trial
`Eubanks alleges his constitutional right to a speedy trial under the Sixth and
`
`Fourteenth Amendments was violated because, although he invoked his right at
`arraignment,5 his trial was delayed due to the court’s schedule and untimely discovery,
`and the resulting contact with informants prejudiced him. (ECF No. 43 at 14-16.)
`1.
`Additional background
`a.
`First trial continuance
`Eubanks was arrested on May 2, 2011. (ECF No. 23 at 41.) In June of 2011,
`Eubanks unconditionally waived his preliminary hearing in anticipation he would later
`enter into a guilty plea agreement. (ECF Nos. 17-31 at 2; 79 at 9-11.) On July 11, 2011,
`Eubanks changed his mind and pleaded not guilty. (ECF No. 18-6 at 3.) Eubanks invoked
`the 60-day rule for trial, but trial was scheduled for June 5 through 15, 2012, with calendar
`call on May 7, 2012, on the basis that counsel could not adequately prepare for trial, and
`there was no court available, within 60 days. (Id. at 3-6.)
`b.
`Second trial continuance
`In April of 2012, trial counsel filed motions to continue trial and for additional
`discovery, stating that Eubanks “agrees to a continuance of the trial date.” (ECF Nos. 20-
`11 at 4; 20-12.) The State did not oppose a trial continuance of 90 days or fewer. (ECF
`No. 20-14 at 2-4.) The State had requested the victims’ medical records, but argued that
`request required no continuance as the records were uncontested. (Id.) The State
`promised to provide the name of a new witness at calendar call on May 7, 2012, and
`stated the defense had all other discovery in the State’s possession. (ECF Nos. 20-14 at
`2-4; 20-15 at 3-5; 20-17 at 2-3.)
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`At calendar call on May 7, 2012, defense counsel argued, “there’s absolutely no
`way we can be prepared,” and, without specifying how much time was needed to prepare
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`5See NRS § 178.556 (“If a defendant whose trial has not been postponed upon the
`defendant’s application is not brought to trial within 60 days after the arraignment on the
`indictment or information, the district court may dismiss the indictment or information.”).
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`for trial, explained counsel had received 146 audio recordings (approximately 23-25
`hours) on April 18, 2012; had not received a report and curriculum vitae for the State’s
`expert pathologist; had been informed on April 25, 2012, about a new jailhouse informant
`for which the defense lacked information; and had only recently provided the final
`outcome of the DNA reports. (ECF No. 20-18 at 2-4, 8.) The State took the position that,
`if continued, trial was preferred in September or October of 2012. (Id. at 5-7.) As for
`discovery, the State argued it was “pretty confident” it could show all 146 audio recordings
`were provided to the defense as the State received them, the defense was provided with
`the pathologist’s report, the State still had time to notice its expert before trial, and the
`victims’ medical records were not critical because the defense was not expected to
`challenge the death or injuries. (Id.) Trial was rescheduled for October 29, 2012, with
`calendar call on September 24, 2012. (ECF No. 20-19 at 2.)
`c.
`Final trial continuance
`At the calendar call on September 24, 2012, Eubanks was present when his
`counsel verbally requested a trial continuance because (1) the state district court did not
`respond to an earlier request for investigation fees; (2) the defense was missing discovery
`concerning an investigation of Jackson for a homicide in Victorville; (3) it was necessary
`to review Maxwell’s sentencing hearing; (4) hiring a forensic expert was under
`consideration; and (5) counsel had difficulty communicating with Eubanks because
`counsel had to allot an entire day of travel to visit him. (ECF No. 21-2 at 3-7, 14-15.) The
`defense request for additional funds and appointment of an investigator to assist with trial
`preparation was submitted on July 24, 2012, and the state district court’s staff informed
`counsel that the court approved $3,500 in funds; however, counsel did not receive an
`order from the court and counsel did not follow-up on the request. (ECF Nos. 21-1; 21-2
`at 4-6; 21-3.) The State opposed a continuance, arguing that the case was over a year-
`and-a-half old, the defense should have hired a forensic expert long before and had five
`to six weeks to obtain an expert opinion and timely notice an expert, and that the
`Victorville investigation never amounted to anything and was irrelevant, although the
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`State agreed to provide the defense with that information. (ECF No. 21-2 at 6-10, 13.)
`The state district court noted the trial calendar was “full for the next year,” it would need
`to “bounce and move around a bunch of other trials,” and denied the verbal motion to
`continue trial, but granted the defense’s request for additional funds to hire an investigator
`(ECF No. 21-3), and instructed defense counsel to review the discovery, consult a
`forensic expert and investigator, and file a motion for trial continuance if additional time
`was needed. (ECF No. 21-2 at 10-15.)
`In October 2012, defense counsel filed a motion to continue trial, again stating
`Eubanks agreed to the continuance. (ECF No. 21-15.) The motion argued a continuance
`was necessary because defense counsel, the defense investigator, and the defense
`forensic expert needed more time for trial preparation as they lacked the dimensions of
`the knives allegedly used as weapons and the cursory information about the knives and
`photograph of the pocketknife did not resemble any of the knives described in the lab
`report. (Id. at 4-5.) The State opposed a continuance, but requested permission to depose
`additional informants if trial was continued. (ECF No. 21-14 at 2-3.)
`On October 29, 2012, the defense motion to continue trial was granted; the
`defense requested trial in April of 2013, however, the State’s schedule did not permit trial
`until May. (ECF No. 21-19 at 88.) The defense agreed to a new May trial date; although
`the State preferred May 6, 2013, the defense preferred the following week. (Id.) Trial was
`rescheduled with a primary setting for May 13-17, 2013, and a secondary setting for May
`6-10, 2013, with calendar call on April 8, 2013. (ECF Nos. 21-19 at 88-91; 21-21 at 2.)
`Trial commenced on May 13, 2013. (ECF No. 21-46.)
`2.
`Legal principles
`“The Sixth Amendment guarantees, ‘[i]n all criminal prosecutions, the accused
`shall enjoy the right to a speedy . . . trial.” Vermont v. Brillon, 556 U.S. 81, 89 (2009).
`When determining whether a defendant’s fundamental constitutional right to a speedy
`trial has been violated, a court balances four factors: (1) whether delay before trial was
`uncommonly long; (2) whether the government or the defendant is more to blame for that
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`delay; (3) whether, in due course, the defendant asserted his right to a speedy trial; and
`(4) whether there is prejudice attributable to the delay. See Doggett v. United States, 505
`U.S. 647, 651 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The Supreme
`Court “regard[s] none of the four factors identified above as either a necessary or
`sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they
`are related factors and must be considered together with such other circumstances as
`may be relevant.” Barker, 407 U.S. at 533.
`The Supreme Court has explained that “[t]he first of these [four factors] is actually
`a double enquiry” because “[t]o trigger a speedy trial analysis, an accused must allege
`that the interval between accusation and trial has crossed the threshold dividing ordinary
`from ‘presumptively prejudicial’ delay,” as, “by definition” a defendant “cannot complain
`that the government has denied him a ‘speedy’ trial” if it has “prosecuted his case with
`customary promptness.” Doggett, 505 U.S. at 651-52. See also Barker, 407 U.S. at 530
`(“Until there is some delay which is presumptively prejudicial, there is no necessity for
`inquiry into the other factors that go into the balance.”). “Depending on the nature of the
`charges, the lower courts have generally found postaccusation delay ‘presumptively
`prejudicial’ at least as it approaches one year.” Doggett, 505 U.S. at 652 n.1.
`“[D]elays sought by counsel are ordinarily attributable to the defendants they
`represent.” Vermont, 556 U.S. at 85. See also, e.g., McNeely v. Blanas, 336 F.3d 822,
`827 (9th Cir. 2003) (explaining “delay attributable to defendant’s own acts or to tactical
`decisions by defense counsel will not bolster defendant’s speedy trial argument”); United
`States v. Tanh Huu Lam, 251 F.3d 852, 857-58 (9th Cir. 2001) (holding a defendant
`responsible for defense counsel’s requests for continuances as defendant never moved
`to substitute counsel or dismiss indictment before trial, each continuance was granted
`according to legitimate needs of competent counsel, and the defendant benefitted from
`counsel’s additional preparation of the case). On the other hand, “[a] deliberate attempt
`to delay the trial in order to hamper the defense should be weighted heavily against the
`government.” Barker, 407 U.S. at 531. “A more neutral reason such as negligence or
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`overcrowded courts should be weighted less heavily but nevertheless should be
`considered since the ultimate responsibility for such circumstances must rest with the
`government rather than with the defendant.” Id. Negligence is “weighed more lightly than
`a deliberate intent to harm the accused’s defense.” See Doggett, 505 U.S. at 657.
`“Prejudice, of course, should be assessed in the light of the interests of defendants
`which the speedy trial right was designed to protect,” and is “prejudice caused by the
`delay,” “not simply any prejudice that may have occurred before the trial date but
`unrelated to the fact of the delay itself.” United States v. Gregory, 322 F.3d 1157, 1163-
`64 (9th Cir. 2003) (quoting Barker, 407 U.S. at 532, 534). The Supreme Court has
`identified three such interests: (1) “to prevent oppressive pretrial incarceration;” (2) “to
`minimize anxiety and concern of the accused;” and (3) “to limit the