Wallace v. Pliler, Civil Action 22-10758-IT[1] (2024)

Civil Action 22-10758-IT[1]

05-28-2024

TIMI Y. WALLACE, Petitioner, v. WILLIAM S. PLILER, Respondent.

M. PAGE KELLEY, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (#1).

M. PAGE KELLEY, UNITED STATES MAGISTRATE JUDGE.

I. Introduction.

In this petition for a writ of habeas corpus under 28 U.S.C. § 2254 (#1), Timi Wallace asserts that the Massachusetts Supreme Judicial Court (“SJC”) erred in finding that his Sixth Amendment right to a speedy trial was not violated where, after a complaint issued charging him with murder, “over ten years” passed before he was brought to trial. (#22 at 4, 12.)

Timi was convicted in 2017 in the Massachusetts Superior Court, Suffolk County, of second-degree murder in connection with the fatal shooting of his brother, Tasfa. (#1 at 2-3; #23 at 3.) The Commonwealth's theory was that Timi shot his brother while acting in a joint venture with another brother, Nickoyan. Commonwealth v. Wallace, 100 Mass.App.Ct. 1103, 2021 WL 3083662, at *1 (2021) (unpublished) (Wallace III). Before trial, both Timi and Nickoyan filed motions before Judge Hely of the Massachusetts Superior Court (“the motion judge”), asserting that under both the Federal and Massachusetts Constitutions, they had been deprived of their constitutional right to a speedy trial. Commonwealth v. Wallace, 472 Mass. 56, 57 (2015) (Wallace II). In an order dated December 6, 2011, the motion judge found that Timi's right to a speedy trial had not been violated, but Nickoyan's had, and dismissed the case against Nickoyan. Id.; #18 at 371-84 (motion judge's order).

Since Timi Wallace, his brother Nickoyan Wallace, and their deceased brother Tasfa Wallace all share the same last name, the court refers to them by their first names to avoid confusion.

A single justice of the SJC allowed the interlocutory appeals of Timi and the Commonwealth, consolidated the cases, and reported them to the Massachusetts Appeals Court (“MAC”). Wallace II, 472 Mass. at 57. The MAC held that neither brother's right to a speedy trial had been violated, thus affirming the motion judge's denial of Timi's motion and reversing the allowance of Nickoyan's. Commonwealth v. Wallace, 85 Mass.App.Ct. 123 (2014) (Wallace I). On further appellate review, the SJC reversed the MAC with regard to Nickoyan and affirmed the motion judge's denial of Timi's motion and his allowance of Nickoyan's motion. Wallace II, 472 Mass. at 72.

Because much of the SJC's rationale for affirming the denial of Timi's motion was in the context of comparing his case with Nickoyan's, the SJC's factual findings and legal conclusions concerning Nickoyan will be discussed in detail in this report and recommendation.

Timi was convicted of second-degree murder on April 11, 2017. (#18 at 17.) On appeal, the MAC affirmed his conviction, see Wallace III, and on September 14, 2021, his petition for further appellate review to the SJC was denied. Commonwealth v. Wallace, 488 Mass. 1104 (2021) (table). Acting pro se, he timely filed this petition on May 17, 2022. (#1.) On March 16, 2023, represented by counsel, Timi filed a memorandum in support of his petition. (#22.) The government opposed. (#23.) For the reasons set out below, this court recommends that the petition be DENIED.

On April 26, 2017, Timi was sentenced to 15 years to life, to be served concurrently with the federal sentence he was then (and at the time of the writing of this report and recommendation, still is) serving. (#18 at 17-18.).

II. Factual Background.

A. Tasfa is murdered; Timi and Nickoyan flee and commit a robbery; Timi is arrested after four years as a fugitive and is convicted in federal court of the robbery.

At Timi's trial for murder, the Commonwealth presented evidence that on March 26, 2000, Timi and Nickoyan had a dispute with Tasfa over money, and, angered by his failure to meet with them as planned, they each armed themselves with a loaded firearm, went to Tasfa's apartment, and fatally shot him through the door. Wallace III, 2021 WL 3083662, at *1, 6. Tasfa's girlfriend, who answered knocking at the door and saw Timi and Nickoyan through the door's peephole, was a witness at trial; other witnesses saw Timi and Nickoyan entering and leaving the building at the time of the shooting. Wallace II, 472 Mass. at 58.

On March 27, 2000, the day after the shooting, criminal complaints charging Timi and Nickoyan with murder issued from the Dorchester Division of the Boston Municipal Court Department. Id. Boston Police soon learned that the two brothers had left Massachusetts. Id. In April 2000, the U.S. District Court for the District of Massachusetts issued federal fugitive warrants charging the brothers with unlawful interstate flight to avoid prosecution. Id.

On September 25, 2000, Timi and Nickoyan committed an armed robbery of a gun store in Providence, Rhode Island. Id. On October 5, 2000, Nickoyan was arrested. Id. Both brothers were federally indicted for the gun store robbery on October 18, 2000. Id. After his arrest, Nickoyan was held in federal custody; on February 23, 2001, a jury trial on the robbery and related charges in the United States District Court for the District of Rhode Island ended in a hung jury. Id.; #18 at 174. After a second jury trial, on November 8, 2001, Nickoyan was convicted of the robbery and related charges. Id. at 177. On March 19, 2002, he was sentenced to seventeen years in prison. Id.

Nickoyan appealed from his conviction and the First Circuit affirmed in August 2003. United States v. Wallace, 71 Fed.Appx. 868 (1st Cir. 2003). Nickoyan then filed a petition under 28 U.S.C. § 2255 in the U.S. District Court for the District of Rhode Island to correct his sentence, which was allowed by the sentencing judge on May 25, 2006, on the grounds that Nickoyan's guidelines range had been miscalculated at the original sentencing. See Wallace v. United States, No. Civ. A. 04-363-L, 2006 WL 1495518, at *3-4 (D. R.I. May 25, 2006); #18 at 188. He was resentenced on October 25, 2006, to the same sentence as before, 17 years. (#18 at 190.) Nickoyan again appealed, and on May 23, 2008, again his appeal was denied by the First Circuit. United States v. Wallace, No. 06-2606 (1st Cir. May 23, 2008).

Timi was a fugitive for almost four years after the robbery; he was arrested on July 20, 2004. Wallace II, 472 Mass. at 58. After his arrest, he also was held in federal custody and then also convicted of the robbery and related charges on October 15, 2004, after a jury trial. Id.; #18 at 181, 184. He was sentenced to twenty-five years on January 21, 2005. Wallace II, 472 Mass. at 58; #18 at 185. He appealed, and on August 14, 2006, the First Circuit affirmed his conviction but remanded for resentencing based on errors in the sentencing judge's application of sentencing guidelines provisions to depart upward from the advisory guidelines range. United States v. Wallace, 461 F.3d 15, 43-45 (1st Cir. 2006); #18 at 189. He was resentenced on May 24, 2007, to six months less than the first sentence, that is, to a sentence of twenty-four and one-half years. (#18 at 193-94.)

Timi appealed again, and on July 23, 2009, the First Circuit affirmed. United States v. Wallace, 573 F.3d 82 (1st Cir. 2009), cert. denied, 558 U.S. 1036 (2009).

B. While a fugitive, Timi is indicted for murder; once he is arrested and in federal custody in connection with the robbery, state prosecutors delay lodging a detainer against him.

About six months after Nickoyan's federal trial, on May 22, 2002, while Timi was still a fugitive, a Massachusetts grand jury issued indictments against Timi and Nickoyan charging them with the murder of Tasfa. Wallace II, 472 Mass. at 59; #18 at 670-71 (indictments). As stated above, Timi was a fugitive from the time of Tasfa's murder in March 2000 until he was arrested in July 2004; he was tried on the federal armed robbery charge in October 2004; he was sentenced in federal court for the first time in January 2005; and he was resentenced in May 2007. Although the Interstate Agreement on Detainers (“IAD”) permitted state prosecutors to lodge detainers against Timi and Nickoyan to initiate the process for bringing them to state court as soon as they began serving their federal sentences, state prosecutors did not do so until June 2009. Timi was arraigned on the murder charge on November 25, 2009; Nickoyan was arraigned on December 9, 2009. Wallace II, 472 Mass. at 59.

The federal government and Massachusetts are signatories to the IAD. 18 U.S.C. App. § 2; see Pub. L. No. 91-538, 84 Stat. 1397 (1970) (federal); Stat. 1965, ch. 892 § 1 (1966) (Massachusetts). The IAD allows prisoners who are serving a sentence to obtain a final disposition on pending charges in jurisdictions other than the one where they are serving time, 18 U.S.C. App. § 2, art. III(a), and allows prosecutors to demand temporary custody of such prisoners to bring them to trial. Id. at art. IV(a). For the IAD to apply, a prosecutor from the jurisdiction seeking custody of the prisoner must first file a detainer at the prison where the prisoner is serving time. Id. at art. III(a), IV(a). (A detainer is a legal order that requires the state or federal authorities with custody of a prisoner to hold the prisoner when he has finished serving his sentence, so that he may be tried by another jurisdiction for a crime. Alabama v. Bozeman, 533 U.S. 146, 148 (2001).) When a prosecutor triggers the IAD by filing a detainer against a prisoner, the warden of the prison must promptly notify the prisoner of the detainer and of his right to request a final disposition under the IAD. 18 U.S.C. App. § 2, art. III(c). The prisoner may then demand to be tried; he is entitled to a trial within 180 days “after he shall have caused to be delivered to the prosecuting officer and the appropriate court ... written notice of the place of his imprisonment and his request for a final disposition.” Id. at art. III(a). Alternatively, a prosecutor in the jurisdiction where an untried charge is pending is “entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available . upon presentation of a written request for temporary custody..” Id. at art. IV(a). After filing a detainer, when a prosecutor requests temporary custody of a prisoner under article IV, the trial must take place within 120 days of the arrival of the prisoner in the receiving state. Id. at art. IV(c). The sanction for violating the time periods within which to bring the prisoner to trial is dismissal, id. at art. III(a), (d), art. IV(c), (e), although the IAD provides that “for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Id. at art. III(a), art. IV(c). The IAD does not set a time limit on when a detainer must be filed; however, the First Circuit has said that “even though the failure to lodge a detainer is not itself a per se violation of a defendant's speedy trial right, it is a significant misstep, for which the state must bear responsibility.” Rashad v. Walsh, 300 F.3d 27, 37 (1st Cir. 2002).

The SJC found that detainers were issued against both Nickoyan and Timi on July 16, 2009. Wallace II, 472 Mass. at 59. This is incorrect. According to the Superior Court docket of the murder case, Assistant District Attorney Edward Krippendorf filed a request for temporary custody of the brothers under the IAD on July 17, 2009. (#18 at 9, 136, 503-04 (request for temporary custody).) A request for temporary custody is not the same as a detainer. As explained supra in note 7, under the IAD, authorities seeking custody of a prisoner must file a detainer first, then they may file a request for temporary custody. 18 U.S.C. App. § 2, art. III(a), art. IV(a). In his order, the motion judge found that the Commonwealth filed a detainer against Timi around June 15, 2009. (#18 at 633.)

C. The reasons for state prosecutors' delay in lodging a detainer.

After Timi and Nickoyan filed motions to dismiss the murder charge on speedy trial grounds, the motion judge held a three-day hearing at which prosecutors from Suffolk County and Boston police officers testified about why it took them so long to bring the brothers to trial. (#18 at Exs. 1-3 (transcripts of hearing).) As the SJC noted, emails obtained from state prosecutors, which were admitted into evidence at the hearing, (#18 at 524-49 (emails)), show that after Nickoyan was arrested in 2000 and after Timi was arrested in 2004, state prosecutors knew that the brothers were in federal custody, but delayed lodging detainers against them under the IAD for years. Wallace II, 472 Mass. at 59. The SJC agreed with the motion judge's finding that the period when the brothers were subject to the IAD, that is, when they were serving their federal sentences, was “characterized by a ‘cumulative lack of attention by the [d]istrict [attorney's [o]ffice to the duty to file detainers in this case within a reasonable time.'” Id. at 62 (quoting motion judge's findings, #18 at 381) (internal alterations incorporated, additional alterations added).

In his order, the motion judge set out more detailed findings than did the SJC concerning the reasons for the state prosecutors' delay. Based on the testimony he heard at the hearing, the motion judge found that the causes of the delay in bringing the brothers to trial included:

practical difficulties in tracking the status of the two [f]ederal prosecutions, including the appeals and the vacating of the defendants' initial sentences; frequent changes in the locations of the defendants' [f]ederal prison assignments (e.g., New York, West Virginia, Ohio, Kentucky); keeping track of the witnesses and evidence

and completing forensic testing so that the cases would be ready for trial when the Commonwealth obtained custody of the defendants; the large number of homicide trial cases and investigations assigned to each assistant district attorney within the homicide division of the Suffolk County District Attorney's Office; the complexity and difficulty of preparing homicide cases for indictment and trial under contemporary court standards for investigation, discovery, and pretrial and trial issues; and changes in the assistant district attorneys assigned to the case.

Neither the motion judge in his order nor the SJC in its decision set out in any detail the testimony of the witnesses who testified at the hearing. The court therefore summarizes the testimony that is relevant to the analysis of the motion judge's and the SJC's factual findings below.

The case was assigned to Assistant District Attorney (“ADA”) Lynn Beland from March 26, 2000, the date of the murder, to November 30, 2003, when she left the office to work elsewhere. (#18-1 at 56, 116-17, 134.) ADA Beland did not indict the case until May 22, 2002, two years after the murder. Id. at 86, 117. Although she did not remember, ADA Beland speculated that she might have delayed indicting the case for so long because she was busy trying other cases. Id. at 123-24. She did not file a detainer to bring Nickoyan to Massachusetts because she wanted to try the brothers together (as set out above, Timi was not arrested until 2004), and again, because she was busy. Id. at 131, 133-34, 139-40. When asked if she took “any further action” on the case in the eighteen months after the indictment that she had the case, she stated that she “probably would have talked to ... Sergeant Harrington,” although she did not recall doing so. Id. at 132-33. She did not remember leaving a “memo to the file” concerning her work on the case when she left the office, nor did she remember speaking to ADA Timothy Bradl, who took over the case from her (see infra), about the case. Id. at 133.

Boston Police Lieutenant Detective Robert Harrington, who testified at the hearing, investigated the case. (#18-1 at 22, 24; #18-2 at 75.)

About a week before ADA Beland indicted the case, on May 14, 2002, the then-chief of the homicide unit, David Meier (“Chief Meier”),sent an email about the case to several people in the office, in which he stated:

David Meier, who testified at the hearing, was the chief of the homicide unit from 1996 to December 2007. (#18-2 at 62-63, 90.)

Nickoyan Wallace is in federal custody in Rhode Island serving a sentence on an unrelated case; Timi Wallace is still on the run. Given the implications and consequences of triggering the Interstate Agreement on Detainers (mandatory trial within 120 days, otherwise dismissal of charges), there may be strategic and practical reasons to wait until Nickoyan Wallace completes his federal sentence before bringing him into court (via the IAD) for arraignment on these charges.

After ADA Beland's departure from the office in 2003, Chief Meier did not reassign it for eight months. (#18-2 at 72-73.) During that time it was his case. Id. He did not remember doing any work on it. Id. at 73.

Chief Meier assigned the case to ADA Bradl in July 2004, the same month that Timi was arrested. Id. at 23-24. ADA Bradl had the case for almost two years, until February 2006, when he left the office. Id. at 39-41, 53. On July 26, 2004, Chief Meier emailed ADA Bradl, stating that Timi had recently been arrested in the Bronx and was awaiting rendition to Massachusetts, and that Nickoyan was serving federal time in Rhode Island. Id. at 73-74; #18 at 524 (email). Chief Meier said in the email: “Please coordinate with Sgt. Det. Harrington, Mark Zanini, and Sgt. Clancy with respect to the renditions/IAD issues involving both defendants.” (#18 at 524 (email).) He also forwarded to ADA Bradl his May 2002 email warning of the consequences of triggering the IAD. (#18-2 at 26-27, 73-74; #18 at 524 (email.).) Chief Meier testified that his “thought process” in sending the email to ADA Bradl was that the case was now four years old, and “[t]he case isn't getting any better.” (#18-2 at 74.)

About a year later, in April 2005, Chief Meier emailed ADA Bradl and asked, “What is the status of this case? Have either or both defendants been arraigned in Sup Ct [sic]?” (#18 at 525 (email).) The next month, in May 2005, Chief Meier emailed ADA Bradl again, asking, “Where does this stand? Any defendants arraigned?” Id. Chief Meier testified that even though time was passing, and the brothers had not been arraigned “five years after the homicide and three years after indictment,” he was not concerned about any ethical or legal problems, rather he was just thinking that the case “wasn't going to get any better from the [government's perspective.” (#18-2 at 78-79.) When asked if there was a “legal or ethical responsibility on the part of the DA's Officer [sic], under Rule 36 to file a detainer,”his answer was: “[T]hat concern didn't cross my mind.” Id. at 79. Ultimately, he said, the reason the case took so long to be prepared for trial was that “in Suffolk County, sometimes through no one's fault, cases took time to be investigated, to be solved, or allegedly solved.” Id. at 80.

Massachusetts Rule of Criminal Procedure 36 concerns the speedy trial rights of defendants. The rule provides that a prosecutor must diligently seek to file a detainer against a defendant incarcerated outside the Commonwealth. Mass. R. Crim. P. 36(d)(3); see Wallace II, 472 Mass. at 73. If a prosecutor has delayed unreasonably, the defendant must show actual prejudice for the charges to be dismissed with prejudice. See Wallace II, 472 Mass. at 73. In Wallace II, the SJC denied Timi and Nickoyan's motions to dismiss under Rule 36, because they had failed to demonstrate “actual prejudice arising from the delay in filing the detainer.” Id.

ADA Bradl said he did not remember speaking with Sergeant Harrington about the case, but that he probably did so, and he “probably asked him to make a basic assessment of the case and see where we stood on the case.” Id. at 26. ADA Bradl was “aware of IAD issues, speedy trial issues.” Id. at 27. He admitted that to wait until Nickoyan had finished serving his sentence to bring him to Massachusetts, as Chief Meier suggested doing in the forwarded email, was “not an option that was at all advisable,” since Nickoyan's sentence was so long. Id. at 28-29.

ADA Bradl emailed Chief Meier on May 10, 2005, and said that he would talk to Sergeant Harrington, ask him to “make a basic assessment of the case,” and “[a]ssuming the case is solid, we should then begin the detainer process and be ready to move as soon as we get [the brothers] back.” (#18 at 525 (email); see #18-2 at 26, 34, 77.)

On April 4, 2005, and again on May 5, 2005, an inmate systems manager at the United States Penitentiary at Allenwood, Pennsylvania, where Timi was serving his federal sentence, sent Suffolk County District Attorney Daniel Conley two identical “detainer action letters.” (#18 at 839, 840 (letters).) The letters stated that the presentence investigation report (prepared in connection with Timi's federal sentencing) noted that there was an outstanding criminal complaint and warrant for the murder case, and asked:

As explained by Nickoyan's attorney at the hearing, detainer action letters are routinely sent to prosecutors by federal prison authorities when they discover that a prisoner has an outstanding warrant; the letters ask prosecutors if they want to lodge a detainer against the prisoner. (#18-2 at 37.) As the letters are not generated by the prisoner and do not request a speedy trial, they do not constitute a demand by the prisoner for a speedy trial. Id. at 57.

Will you please investigate this report and advise what disposition, if any, has been made of the case. If subject is wanted by your department and you wish a detainer placed, it will be necessary for you to forward a certified copy of your warrant to us along with a cover letter stating your desire to have it lodged as a detainer. If you have no further interest in the subject, please forward a letter indicating so.

On June 6, 2005, ADA Mark Zanini, who was the person in the district attorney's office with expertise in using the IAD and other means to obtain custody of prisoners held in other jurisdictions, and who apparently received the detainer action letters (#18-2 at 75-76), sent ADA Bradl an email, telling him that Timi was serving time in Pennsylvania and asking, “Do you want him? If so, a detainer is not the way to go; rather a writ of habeas corpus ad prosecutum [sic].” Id. at 31, 54-55; #18 at 527 (email). ADA Bradl testified that he knew that in addition to the IAD, he could use a writ of habeas corpus ad prosequendum to bring the brothers to state court, although he believed that it was difficult to get the federal authorities to respond to a writ. (#18-2 at 30-31.) He was planning on “looking into an IAD procedure,” but after he received the email from ADA Zanini, he decided he “was going to research and look into and figure out [the habeas ad prosequendum procedure], which [he] didn't do-which [he] didn't get to.” Id. at 35-36. ADA Bradl said that he did not work on the case because it was his last year working as a prosecutor, and because he was busy trying other murder cases. Id. at 34-35.

After ADA Bradl left the office in February 2006, ADA Masai-Maliek King was assigned the case. Id. at 6. He never spoke to ADA Bradl about it and took no action on it until it was reassigned in August 2007. Id. at 7-17.

ADA Edward Krippendorf was assigned the case in August 2007 and had it until 2010, when he left the office. (#18-1 at 146, 190-91.) He was busy trying other cases and was on paternity leave during the time he was assigned the case. Id. at 191-92. He knew Timi and Nickoyan were in federal custody, although he did not try to locate specifically where they were until the spring of 2009. Id. at 147-48. He described the IAD process as “a long and painful process.” Id. at 149. Concerning the complexity of the case, he explained: “In this case, there was ballistic evidence,” “[t]here was forensic testing,” and the authorities had to make sure they could find the witnesses. Id. at 154. No forensic testing had been done when he got the case. Id. at 155. Although he received the case in 2007, he did not meet with the forensic team until January 2009. Id. at 157, 190. He did not recall what forensic testing was done after the meeting. Id. at 196-97.

Detective Harrington testified that ballistics reports and fingerprint analysis reports were generated in connection with the case; the fingerprint analysis was performed in February 2009. (#18-1 at 33-34.) The fingerprint evidence, which came from a knife that was not connected to the murder but was found in a residence, was not important to the case. Id. at 107-08. All the civilian witnesses had testified at the grand jury. Id. at 86. Regarding whether the government would be prepared to try the case if the government utilized the IAD to get custody of the defendants, he said that he told ADA Krippendorf that he “was aware of the 180-day rule, that that was fine with me. We could easily mobilize for trial if that was the case.” Id. at 91.

In January 2009, ADA Krippendorf received information (that later turned out to be incorrect) that Nickoyan's release date was very soon, in June 22, 2009; he thought a detainer should be filed in order to prevent him from being released and sent an email to Sergeant Harrington saying so. Id. at 199-201; see #18 at 1029. ADA Krippendorf testified that his decision finally to file the detainer “had nothing to do with speedy trial whatsoever,” it was only to ensure that Nickoyan was not released. (#18-1 at 200.)

ADA Krippendorf testified that no detainer was filed, and that he only filed a request for temporary custody (#18-1 at 202), but in fact, the Commonwealth stated in its brief to the MAC (after Timi appealed the motion judge's order) that ADA Krippendorf was wrong, and, as the motion judge found, see #18 at 376, detainers were filed (presumably by ADA Krippendorf, or at his direction) in June 2009 against Timi and Nickoyan. Id. at 588.

D. Timi's time as a fugitive and his knowledge of the pending murder indictment.

The motion judge found that Timi knew “shortly after the murder of his brother that the Boston Police were looking for him to arrest him” and that he “thwarted the efforts of the Boston Police and [f]ederal marshals to find and arrest him” for four years and three months, from the date of the murder (March 27, 2000) to the date of his arrest (July 20, 2004). (#18 at 383.) The motion judge also noted that at Timi's resentencing in federal court, the sentencing judge found “that he was well aware of the Massachusetts murder charge at the time of the September 25, 2000 robbery.” Id. (citing Wallace II, 573 F.3d at 96).

III. Legal Standard.

A. The Antiterrorism and Effective Death Penalty Act of 1996.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214 (1996), permits a federal court to grant habeas relief “with respect to any claim that was adjudicated on the merits in [s]tate court proceedings” only if the state court decision was either “contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

A decision by a state court is “contrary to” clearly established federal law if it (1) applies a rule that contradicts the governing law as set out in the Supreme Court's cases or (2) it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

A decision is an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). The Supreme Court has cautioned that on habeas review, a decision that is incorrect does not necessarily rise to the level of being unreasonable. Williams, 529 U.S. at 410. “The bottom line is that where . ‘the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion,' a federal habeas court must examine the ‘specific reasons given by the state court and defer to those reasons if they are reasonable.'” Webster v. Gray, 39 F.4th 27, 33-34 (1st Cir. 2022) (quoting Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018)) (cleaned up). “[T]he state court's application of Supreme Court precedent ‘must be objectively unreasonable, not merely wrong; even clear error will not suffice.'” Id. at 34 (quoting White, 572 U.S. at 419). “And in all events, the reasonableness of a state court's application of a rule laid down by the Supreme Court is calibrated to the specificity of the rule: ‘the more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (cleaned up).

While the focus in an analysis under the AEDPA is on Supreme Court holdings that were clearly established at the time of the state court proceedings, Williams, 529 U.S. at 412, “factually similar cases from the lower federal courts may inform such a determination, providing a valuable reference point when the relevant Supreme Court rule is broad and applies to a kaleidoscopic array of fact patterns.” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002).

The AEDPA sets a high bar for challenging factual findings made by state courts: “a determination of a factual issue made by a [s]tate court shall be presumed to be correct” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption extends to findings made by both state appellate courts and trial courts. Webster, 39 F.4th at 29; Rashad, 300 F.3d at 35.

B. The right to a speedy trial.

The Sixth Amendment to the United States Constitution provides that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. Amend. VI. The right is fundamental and is imposed on the states through the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515 (1972); Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (right to speedy trial is “one of the most basic rights preserved by our Constitution.”). In the seminal case of Barker, the Court “expressly rejected a bright-line rule in favor of a ‘functional analysis of the right in the particular context of the case.'” United States v. Carpenter, 781 F.3d 599, 608 (1st Cir. 2015) (quoting Barker, 407 U.S. at 522). “It did so because the remedy-dismissal of the indictment-was ‘unsatisfactorily severe.'” Id. (quoting Barker, 407 U.S. at 522.) The Court in Barker explained why a balancing test was appropriate: “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circ*mstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Barker, 407 U.S. at 522 (internal punctuation omitted).

The Supreme Court in Barker held that “the primary burden...to assure that cases are brought to trial” rests with prosecutors, not defendants. Id. at 529. The Court established a four-factor balancing test for determining whether the right has been violated: “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Id. at 530. At the outset, the delay must be of some meaningful length to trigger review; unless it is long enough to be deemed “presumptively prejudicial,” the inquiry ends there. Id. A one-year delay is generally considered long enough to warrant review. Doggett v. United States, 505 U.S. 647, 652 n.1. (1992). Of course, the presumption that delay prejudices the defendant increases over time. Doggett, 505 U.S. at 652; Carpenter, 781 F.3d at 610.

If a delay is long enough to warrant review, then the length of the delay also becomes a factor the court considers as part of the balancing test under Barker. United States v. Souza, 749 F.3d 74, 81-82 (1st Cir. 2014); see Doggett, 505 U.S. at 652. The weight attributed to the delay “depends upon the extent to which the delay exceeds the bare minimum considered presumptively prejudicial.” United States v. Muñoz-Amado, 182 F.3d 57, 62 (1st Cir. 1999) (19-month delay before start of trial “long enough to tip the scales slightly in favor of [defendant's] claim” in relatively uncomplicated case).

When deciding whether a delay is “unreasonable,” a court should consider the complexity of the case. Barker, 407 U.S. at 531 (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”); see Doggett, 505 U.S. at 652 n.1; see also United States v. Casas, 425 F.3d 23, 33-34 (1st Cir. 2005) (holding that in complex drug conspiracy involving sixty defendants, forty-month delay from time of arrest to trial did not violate defendants' speedy trial rights, where delay was due in large part to resolving pretrial issues raised by defendants).

The second Barker prong, the reason for delay, is often considered “the focal inquiry.” United States v. Santiago-Becerril, 130 F.3d 11, 22 (1st Cir. 1997) (internal punctuation omitted). Delay caused by a defendant will be counted against him. See Souza, 749 F.3d at 82. Delay attributable to the government may be weighted according to the circ*mstances. Id. The Supreme Court elaborated in Barker:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily [against the government] but nevertheless should be considered since the ultimate responsibility for such circ*mstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

The third factor concerns the “frequency and force” with which the defendant objected to the delay. Carpenter, 781 F.3d at 614; Barker, 407 U.S. at 529. A defendant's assertion of his speedy trial rights is to be given “strong evidentiary weight,” while his failure to make a demand “will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 531-32. The First Circuit said with regard to this aspect of the balancing test: “Although a defendant does not waive his constitutional right to a speedy trial by failing to assert it at a time when the state could have nipped the violation in the bud, his failure to do so means that he must make a much stronger showing on the other factors in order to succeed in his claim.” Rashad, 300 F.3d at 34.

Finally, the court must consider whether a defendant was prejudiced by the delay. Barker, 407 U.S. at 532. The defendant may establish prejudice by evidence of actual prejudice, that is, the harms speedy trial rights are designed to avoid: (i) oppressive pretrial incarceration; (ii) anxiety and concern of the accused; and (iii) impairment of the defense. Id. A defendant who asserts that he was specifically prejudiced by one of these harms has the burden of proving his allegations. United States v. Reyes, 24 F.4th 1, 30 (1st Cir. 2022).

Recognizing that harm to a defendant's case “is the most difficult form of speedy trial prejudice to prove,” the Supreme Court has stated that “affirmative proof of particularized prejudice is not essential to every speedy trial claim,” and courts must recognize that “excessive delay presumptively compromises the reliability of a trial.” Doggett, 505 U.S. at 655; Rashad, 300 F.3d at 34 (“In aggravated cases, involving grossly excessive delay, prejudice may be presumed despite the defendant's inability to identify particular testimony or evidence that has become unavailable due to the passage of time.”); see also United States v. Muhtorov, 20 F.4th 558, 653, 656 (10th Cir. 2021), cert. denied, 143 S.Ct. 246 (2022) (“Generally, the court requires a delay of six years before allowing the delay itself to constitute prejudice.” (quoting United States v. Seltzer, 595 F.3d 1170, 1180 n.3 (10th Cir. 2010)).

Overall, none of the four factors is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U.S. at 533. The factors “have no talismanic qualities”; courts considering them must still “engage in a difficult and sensitive balancing process.” Id.

IV. The SJC's Decision.

A. The overall length of the delay.

Concerning the first Barker factor, the length of the delay, the SJC found that the speedy trial clock began ticking “from the moment the criminal complaints issued from the Boston Municipal Court on March 27, 2000,” and therefore the “almost ten-year delays” until Timi's and Nickoyan's arraignments (on November 25, 2009, and December 9, 2009, respectively), “certainly are sufficient to trigger a speedy trial analysis under Barker.” Wallace II, 472 Mass. at 60-61.

Under the Sixth Amendment, the right to a speedy trial is engaged by “either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.” United States v. Marion, 404 U.S. 307, 320 (1971); see United States v. MacDonald, 456 U.S. 1, 6-7 (1982) (discussingMarion); see also Butler v. Mitchell, 815 F.3d 87, 90 (1st Cir. 2016), cert. denied sub nom. Butler v. Murphy, 137 S.Ct. 1064 (2017) (Massachusetts criminal complaint, standing alone, is not the public, official accusation that Sixth Amendment requires, as it is “indictment or waiver [of indictment], not the complaint, that functions as the charge necessary to commence the prosecutorial process in earnest”); Rashad, 300 F.3d at 39 (same). Timi's federal speedy trial rights were triggered when the state indictment was returned on May 22, 2002, seven years and six months before his arraignment on November 25, 2009. While shorter than the calculation under state law, this period is obviously long enough to trigger an analysis under Barker. See Doggett, 505 U.S. at 652 n.1 (one-year delay is generally sufficient to trigger review).

In their pleadings, the government and Timi both assume that the terminal date for the Barker analysis is Timi's arraignment on the state charge, November 25, 2009. (#22 at 16 (Timi)); #23 at 18 (government).) Timi did not assert that his speedy trial rights were violated after his arraignment, see #18 at 371 n.1. The motion judge ended the time held against the government in June 2009, when the Commonwealth filed a detainer (#18 at 633), and the SJC, in July 2009, the date on which the SJC mistakenly stated the Commonwealth filed a detainer (see supra, note 8, for explanation). This court finds that the arraignment date is the correct end point for the federal analysis here. As state prosecutors did nothing on the case for multiple years, it hardly seems fair to count against Timi the four months that it took them to effectuate his move to state custody after they finally filed a detainer under the IAD. The four- or five-month difference between the state courts' end dates and the end date this court adopts does not affect this court's recommendation.

B. The reasons for the delay.

The SJC held Timi and Nickoyan responsible for the time from the issuance of the complaint to their arrests, a point the brothers conceded. Wallace II, 472 Mass. at 61. For Nickoyan, this period amounted to “about six months,” and for Timi, “just over four years.” Id. Under the federal analysis, the time counted against Timi from his indictment to his arrest was approximately two years and two months. See supra at p. 18.

The brothers argued that the entire time from their arrests to their arraignments on the murder indictment in 2009 should be counted against the Commonwealth, but the SJC disagreed. Wallace II, 472 Mass. at 61. The SJC found that the time the brothers spent in federal custody, while being prosecuted for the robbery committed “while in flight” from the murder case, was “an extension of their conscious decision to flee prosecution and commit the intervening crime.” Id. at 62. The SJC reasoned that if it required the Commonwealth to retrieve the brothers and try them in state court before their federal prosecutions, they might make the same speedy trial argument at the federal level, “because [f]ederal authorities would have relinquished in-hand custody of the defendants only to try them at a later date after their Massachusetts trial.” Id. Further, the SJC found it would not have been easy to remove the defendants to state court: the motion judge “took judicial notice from personal experience of the difficulty of obtaining prisoners in [f]ederal [c]ustody while [f]ederal authorities were actively prosecuting those prisoners.” Id. Thus, the SJC found that the period between arrest and sentencing on the federal charges “must weigh against the defendants.” Id.

The time that the SJC weighed against Timi has a slight wrinkle due to his being sentenced twice. The motion judge found that the time between the First Circuit's vacating of his sentence (August 14, 2006) and his resentencing (May 24, 2007) should count against Timi, since the IAD was not available to the Commonwealth when he was not a sentenced prisoner. (#18 at 379 (erroneously stating First Circuit vacated sentence on September 15, 2006).) The SJC agreed. Wallace II, 472 Mass. at 63 n.7. The record is not developed as to whether Timi was unavailable to state court prosecutors during the approximately eight months while he was awaiting resentencing. At any rate, counting this short time against Timi does not change the court's analysis.

Timi again asserts here that the time it took the federal government to try and sentence him should not have been counted against him. (#22 at 16-17.) This court questions the SJC's rationale that Timi's time in federal custody must be weighed against him because the robbery, committed after he left Massachusetts following the murder, was “an extension of [his] conscious decision to flee.” Wallace II, 472 Mass. at 62. This court finds no support for this rationale in the caselaw and the SJC does not cite any. Putting this questionable reasoning aside, however, the SJC also found that state prosecutors should not be faulted for failing to try to have the brothers removed to state court because of the difficulty of getting the federal authorities to release them while their federal cases were pending. Id. Timi has not rebutted the presumption of correctness which this court must apply to this finding. See 28 U.S.C. § 2254(e)(1).

The record is undeveloped on this point, but in fact, state authorities can use writs of habeas corpus ad prosequendum to secure the presence in state court of federal pretrial detainees or prisoners who are awaiting sentencing or resentencing. See Commonwealth v. Florence, 7 Mass.App.Ct. 126, 127 (1979) (discussing federal policy of recognizing state writs of habeas corpus ad prosequendum as a matter of comity). As set out above, ADA Bradl testified at the evidentiary hearing that he knew he could use this method to bring the brothers to state court, although he believed that federal authorities might not respond to it. (#18-2 at 30-31.) In addition, ADA Zanini, who had expertise in the IAD and other means of getting custody of prisoners in other jurisdictions, sent an email to ADA Bradl in which he suggested he should use a writ of habeas corpus ad prosequendum rather than lodging a detainer under the IAD to bring Timi to Massachusetts. (#18-2 at 31, 54, 55; #18 at 527 (email).) These hints in the record that prosecutors need not have waited until the IAD was available to try to have the brothers transferred to state custody, however, are not sufficient to rebut the presumption of correctness that this court must apply to the motion judge's and SJC's findings. At any rate, the fifteen months that was held against Timi rather than the government while he was tried and then twice sentenced on the federal charge, see supra, note 16, does not affect this court's decision.

Furthermore, there is no clearly established Supreme Court precedent holding that state authorities may not wait until a federal prisoner is sentenced before attempting to gain custody of him. Instead, as the SJC noted, there is some support in the lower federal courts for such a proposition, see Wallace II, 472 Mass. at 62 (citing United States v. Grimmond, 137 F.3d 823, 828 (4th Cir.), cert. denied, 525 U.S. 850 (1998) (“Simply waiting for another sovereign to finish prosecuting a defendant is without question a valid reason for delay.”).) Timi relies on a case from the Tenth Circuit to argue that that the SJC erred, because waiting for the “completion of another sovereign's prosecution may be a plausible reason for delay in some circ*mstances, but that does not mean it is a justifiable excuse in every case.” (#22 at 17 (citing Seltzer, 595 F.3d at 1177-78).) The Seltzer court's holding-that it is the government's burden to explain why such a wait was necessary in a particular case, and that the “mere fact that the defendant was incarcerated on a previous charge for a portion of the delay does not by itself excuse the delay”-is correct. Seltzer, 595 F.3d at 1178. Here, however, the SJC found that the prosecutors' reasons for waiting for the federal prosecution to conclude were justified. Wallace II, 472 Mass. at 62. Thus, the SJC's counting against Timi the time between Timi's arrest to his first sentencing, and then from the time the First Circuit vacated his sentence to his second sentencing, a time period of fifteen months, id. at 63 n.7, was not an unreasonable application of clearly established federal law, as determined by the Supreme Court.

The critical period here is after Timi and Nickoyan's federal sentencing, when they were serving federal sentences and state prosecutors could have filed detainers under the IAD. As quoted above, the SJC noted that “[t]he motion judge found this period to be characterized by a ‘cumulative lack of attention by the [d]istrict [attorney's office to the duty to file detainers in this case within a reasonable time.'” Id. at 62. The delay was “not deliberate, but negligent.” Id. at 66. The SJC found that for Nickoyan, this period lasted “over seven and one-half years,” and for Timi, “just over four years.” Id. at 62-63. Under the federal analysis, the time period to be weighed against the government regarding Timi equals about the same amount of time, four years.

One could disagree with many of the motion judge's specific findings concerning the reasons for multiple prosecutors' failure to move forward with the case. See #18 at 380-81. For example, the “practical difficulties in tracking the status of the two [f]ederal prosecutions, including the appeals and the vacating of the defendants' initial sentencings,” Id. at 380, were negligible, as a state prosecutor could simply look on the docket of the federal cases or make a telephone call to federal prosecutors to learn this information. The complexity of the case, (“keeping track of the witnesses and evidence and completing forensic testing,” id.), was similarly overstated by the motion judge, as the record is devoid of any indication that there were problems finding the witnesses, the facts of the case were straightforward (two men, who have no alibi, shoot their brother through a door) and the forensic evidence was basic. Detective Harrington testified that he could “easily” have had the trial ready within six months (#18-1 at 91), and one may infer from his testimony that he meant that he could have prepared the trial in any six-month period during the many years that prosecutors did nothing on the case. In spite of these and other problems with the motion judge's findings, however, there is no indication in the record that the prosecutors' neglect of the case was motivated by a desire deliberately to damage the defense, see Barker, 407 U.S. at 531. In other words, there is nothing to indicate that the motion judge's and SJC's ultimate conclusions that the delay was “negligent” was wrong.

The four years consist of eighteen months during the federal prosecution, from Timi's first sentencing (on January 21, 2005) to the time the First Circuit vacated his sentence (on August 14, 2006) and then in addition the two years, six months from Timi's second sentencing (on May 24, 2007) to his arraignment (on November 25, 2009).

The SJC then reasoned that the delay caused by Timi's flight, through the time of his federal sentencing, “is roughly commensurate with the Commonwealth's delay in filing a detainer,” but the “comparable delays are not weighted equally,” because “Timi's deliberate orchestration of the delay weighs more heavily than the Commonwealth's mere neglect.” Id. at 63. The SJC concluded: “Accordingly, the reason for the entirety of the delay-as set out in Barker- must ultimately lie at Timi's feet due to the greater weight placed on his contribution to the delay.” Id.

The SJC's analysis, in which it credits Timi with the entirety of the delay because he was responsible for half of it (as calculated under the state analysis, starting with the date of the issuance of the complaint), is illogical. Why credit the time that someone is a fugitive against them, and then count it against them again when considering the time the government neglected the case and failed to bring them to trial? In other words, even accepting that Timi's deliberate avoidance of trial was more blameworthy than the government's “mere” negligence in waiting four years to bring him to trial, why then blame Timi for “for the entirety of the delay”? Does this mean, for example, that if someone is a fugitive for ten years, then once they are arrested the government has ten years to bring them to trial without violating the defendant's speedy trial rights?

The method the SJC employed has no support in the caselaw. The Supreme Court in Barker, which the SJC cited, did not endorse this reasoning. There, where a total of “well over five years” passed between arrest and trial, the time for which the government ultimately was held responsible was “more than four years.” Barker, 407 U.S. at 533-34. The Supreme Court found, however, that where Mr. Barker was not prejudiced by the delay, and where he admittedly did not want a speedy trial because he hoped the delay would weaken the government's case, the Court would not rule that he was denied his constitutional right to a speedy trial. Id. at 536. To reach this result, the Supreme Court balanced the government's delay along with the other Barker factors and determined that Mr. Barker's right to a speedy trial was not violated.

Not surprisingly, this court could find no other case where a court utilized the rationale that the SJC used to conduct the Barker analysis concerning reasons for delay. The First Circuit's opinion in Rashad is instructive, however, on this point. There, in the context of a speedy trial claim raised in a petition for habeas corpus, the First Circuit disapproved of an analysis conducted by the MAC that was similar to the one the SJC adopted here. In Rashad, the petitioner spent two years as a fugitive after a state complaint was filed against him for rape, time which the First Circuit did not consider in its calculation of the total delay for speedy trial purposes. Rashad, 300 F.3d. at 40. He was then indicted, which started the federal speedy trial clock, and afterward was incarcerated in Texas on an unrelated case for three and one-half years. Id. at 36. During the period of his incarceration, just as in this case, the Commonwealth knew where petitioner was and “yet it made no attempt to bring him back for trial.” Id. at 37. After being released from the Texas jail, petitioner was free for the next nineteen months, spending the last four months in Massachusetts, a time period which the court counted against him, because if he really thought the case against him had been dropped, as he claimed, he could have “checked with the proper authorities” or with his lawyer, to see if that was true. Id. at 39-40.

The First Circuit, notwithstanding the fact that the petitioner had “evad[ed] the authorities after charges were first filed against him,” and then spent many months keeping a low profile after his release from jail, Id. at 40, not only counted the time when the petitioner was incarcerated in Texas against the government, but also weighted it heavily: “[T]he Commonwealth must shoulder significant responsibility for this period of delay.” Id. at 37. The court found that the government's failure to act while he was serving a sentence was further aggravated by the fact that the IAD was available to effectuate his transfer to Massachusetts. Id.

The First Circuit observed that the MAC “looked globally at the elapsed time and concluded that ‘a sizeable portion of the [overall] delay was caused by the defendant,'” Id. at 36 n.5 (quoting the MAC's decision without citation) (alteration in original), and then stated that “the better practice is to assess each period of delay separately.” Id. In short, in a case where the petitioner was responsible for a significant portion of the delay in the speedy trial analysis, just as Timi was here, the First Circuit instructed that each period of delay should be examined separately, held the government responsible for the time it delayed bringing him to trial, and did not shift the blame to the petitioner for the time credited against the government simply because petitioner had avoided prosecution for a lengthy period of time.

Even if one disagrees with the SJC's method of analysis in this case, however, the AEDPA standard still looms large. As the court in Rashad found when discussing the MAC's disfavored global consideration of the periods of delay there, the “short cut [taken by the MAC] does not invalidate the state court's decision. Under the AEDPA, we must determine whether the state court's result, not its rationale, is objectively reasonable.” Id. This point is discussed further in part V, below.

C. Neither Timi nor Nickoyan asserted their speedy trial rights.

The SJC next considered the fact that neither brother ever asserted his speedy trial rights. Wallace II, 472 Mass. at 66-68. Both Timi and Nickoyan “were aware that the Boston police were looking for them when they fled the Commonwealth in 2000”; Timi “was informed on the record at both his [f]ederal arraignment and sentencing of the existence of murder charges in Massachusetts”; and finally, both “refused to sign a form requesting a speedy disposition of the charges after the detainer had been filed.” Id. at 66. The SJC found it “difficult to accept the defendants' claims of ignorance as the source of their failure to assert the right”; instead, the court inferred an effort to “fly under the radar.” Id. at 68 (internal quotations omitted).

The SJC's findings are particularly problematic with regard to Timi's federal speedy trial analysis. First, at his arraignment on the federal case, Timi was informed of the murder charge, but what he heard was that he was “wanted for murder in Massachusetts” and there were warrants outstanding in connection with that case. (#18 at 246 (transcript of hearing).) No one mentioned that he had been indicted, the event which would have triggered his federal speedy trial rights. At his resentencing in federal court approximately three years later, what Timi's counsel said cuts against the argument that Timi knew of his federal right to a speedy trial, because counsel clearly believed that Timi had never been indicted:

[A]s I look at the [presentence report], and I admittedly don't have an updated version of it, all that's indicated as to the Massachusetts homicide is that a complaint was issued. There's no indication in the record before the Court that he was ever indicted. I don't know if [p]robation has any additional information, but the [presentence report] says that it was a complaint, and there was never an arrest.

Again, I'm not an expert in the procedures of the State of Massachusetts court system, but it seems to me one thing that happens is you have to indict somebody to charge them with a capital offense like a murder. And there was never an indictment, for whatever reason.

The other basis for the SJC's finding that Timi “chose not to exercise” his right to a speedy trial is that after a detainer was finally filed, he was given a form to sign, but he refused to sign it. Wallace II, 472 Mass. at 68. The form, however, is difficult to decipher. (#18 at 849 (form).) It does not contain the words “speedy trial.” It has no title. The first paragraph reads:

Failure to take action in accordance with the Interstate Agreement on Detainers Act, to which your state is committed by Law, will result in the invalidation of the indictments, informations, or complaints.

Notwithstanding the SJC's questionable findings concerning Timi's failure to assert his speedy trial rights, the SJC correctly noted that the failure to make a demand “is not a waiver of the right itself but simply a factor to be weighed.” Wallace II, 472 Mass. at 68. In the end, the SJC weighed this factor against Timi and Nickoyan more than the government, “but not heavily so.” Id. The import of the SJC's treatment of this factor is discussed below in part V.

D. The SJC found that Timi was not prejudiced by the four-year delay.

Finally, the SJC considered the prejudice to Timi and Nickoyan, weighing the government's conduct “from the time of [Timi and Nickoyan's] [f]ederal sentencing until their arraignment in Superior Court and the effect of this delay on the basic interests the Sixth Amendment and art. 11 [of the Massachusetts Declaration of Rights] were designed to protect.” Wallace II, 472 Mass. at 68. To repeat, the time periods were calculated by the SJC to be “over four years” for Timi (which as mentioned above is roughly the same as the federal calculation) and “approximately seven years and three months” for Nickoyan. Id.

The SJC decided Wallace II “under the right to a speedy trial enshrined in art. 11 [of the Massachusetts Declaration of Rights],” acknowledging that the “analysis is analogous to that of the [f]ederal right” under the Sixth Amendment. Wallace II, 472 Mass. at 60; see also infra, Part V.

The SJC deferred to the motion judge's finding that Timi “did not suffer oppressive pretrial incarceration or anxiety and concern due to the delay.” Id. at 71. Regarding the most serious factor to be considered, prejudice to the defense from the delay, the SJC stated that “there exists a presumption of prejudice to balance against a recognized but unquantifiable governmental advantage growing with the passage of time.” Id. at 70-71. The court found that although the Commonwealth argued that it had rebutted the presumption of prejudice because “much of the Commonwealth's evidence” had been preserved, nevertheless, the Commonwealth “has failed to-and likely cannot-demonstrate that defendants have suffered no prejudice.” Id. at 72. With regard to Timi, his “time in flight, nearly half of the total delay and attributable wholly to his deliberation action, is a circ*mstance that extenuates the prejudice caused by the entirety of the nine-year delay and accordingly lessens the weight of this factor in the final summation of the Barker test in his case.” Id.

Timi submitted an affidavit at the evidentiary hearing; he did not testify. (#18 at 128-30 (affidavit).) Although he stated in his affidavit that he suffered prejudice from the Commonwealth's delay in trying him, namely, that he was held at a higher security classification in federal prison and he also experienced severe anxiety because of the pending charge, Id. at 129, the presumption of correctness which this court must apply to the motion judge's and SJC's findings in this regard has not been rebutted as required.

The motion judge noted that one potential witness, Boston Police Detective Edward Dooley, had died during the lengthy delay. (#18 at 382.) He had been assigned to go to the hospital where Tasfa had been taken to speak to any witness who might be there. Id. The motion judge found that Detective Dooley “learned of no evidence that would be important to the defense or the Commonwealth” at trial. Id.

The SJC summed up the reasons why Nickoyan's right to a speedy trial was violated and

Timi's was not:

The total delay of nine years weighs against the Commonwealth in Timi's case but is heavily mitigated by the fact nearly half of the delay was caused by Timi's flight and [f]ederal trial. Furthermore, Timi took no action consistent with asserting his speedy trial right. Any presumption of prejudice weighing in Timi's favor is extenuated by his flight. In the totality of the circ*mstances, we are confident in saying that Timi's right to a speedy trial has not been violated, as the motion judge determined.

Nickoyan faced the same total nine-year delay as Timi, and thus that factor must weigh in his favor. As we have stated, the reason for the delay post-[f]ederal sentencing is due to the negligence of the Commonwealth in bringing Nickoyan to trial. That factor must also weigh in Nickoyan's favor. Although Nickoyan also took no action consistent with asserting his speedy trial right, this factor is offset by the presumption of prejudice for which we must account and which is neither otherwise extenuated nor persuasively rebutted. In the final weighing, the Barker factors clearly point to a violation of Nickoyan's right to a speedy trial as the motion judge also determined.

V. Analysis.

A. The SJC's decision is evaluated under AEDPA's deferential standard.

Timi and Nickoyan alleged that their right to a speedy trial was violated under both the Massachusetts and Federal Constitutions. Wallace II, 472 Mass. at 60. Although the SJC decided the case under Massachusetts law and did not squarely address the federal claim, see supra note 22, the federal constitutional issue is deemed to have been “adjudicated on the merits” and the SJC's decision is entitled to deferential review under AEDPA because the SJC stated that it considers the federal and state standards to be the same, cited Barker and Doggett as the controlling law, and conducted its analysis in line with those cases. Id.; see Butler, 815 F.3d at 89 (since SJC considers standards for speedy trial violations under State and Federal Constitutions to be analogous, and identified Barker and Doggett as the controlling law, the “case turns on whether the SJC's decision involves an unreasonable application of those precedents as governing the federal issue before us here.”).

B. The only issue to be considered is whether the SJC's decision was an unreasonable application of clearly established federal law.

Petitioner argues that the SJC's finding that his speedy trial rights were not violated was both contrary to and an unreasonable application of Supreme Court precedent under Barker and Doggett. (#22 at 12.) As stated previously, the “contrary to” prong of ADEPA review comes into play when a state court applies the wrong rule to a legal question or when it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Williams, 529 U.S. at 405-06. The SJC analyzed the speedy trial issue here under the correct legal standard as set out in Barker and Doggett, and so it did not apply the wrong rule to the question presented. See Butler, 815 F.3d at 89. Nor is there any Supreme Court precedent based on indistinguishable facts with which the SJC's decision is in conflict.Thus the “contrary to” prong of AEDPA review is not in play here, and the only question to be considered is whether the state court's decision involved an unreasonable application of Supreme Court law. Id.

Timi cites the case of Smith v. Hooey, 393 U.S. 374, 382-83 (1969), for the proposition that the SJC's counting the time against him while he was in federal custody awaiting trial and sentencing was contrary to clearly-established federal law. (#22 at 15-16.) The facts of Smith are not “materially indistinguishable” from the facts of this case. In Smith, the petitioner was not awaiting federal trial and sentencing, rather, he was serving a federal sentence while prosecutors in Texas delayed bringing him to state court for six years. 393 U.S. at 375-76. This court reiterates that there is no bright-line rule that time spent awaiting trial and sentencing in another jurisdiction must be credited against a defendant in a speedy trial analysis, see Seltzer, 595 F.3d at 1178. Here, however, as stated above, the record is simply undeveloped concerning what methods prosecutors might have used to bring Timi into state custody while his federal case was pending, and prosecutors' excuses for not doing so, adopted by the motion judge and the SJC, have not been rebutted by petitioner as required.

C. Notwithstanding the problems with the SJC's analysis, the SJC's decision is not an unreasonable application of Supreme Court law.

As explained above, the SJC's rationale in balancing the Barker factors was seriously flawed. In considering the second Barker factor, the reasons for delay, the SJC's blaming Timi for the entirety of the four years that the government failed to bring him to trial while he was serving a federal sentence, Wallace II, 472 Mass. at 63, was illogical and unsupported by caselaw. The SJC repeated this error in its analysis of whether Timi was presumptively prejudiced by the time he spent awaiting trial, when it found that his “time in flight, nearly half of the total delay and attributable wholly to his deliberate action, is a circ*mstance that extenuates the prejudice caused by the entirety of the nine-year delay and accordingly lessens the weight of this factor in the final summation of the Barker test in his case.” Id. at 72. In addition, this court questions the SJC's findings concerning Timi's failure to make a demand for a speedy trial, Id. at 66, while he was unrepresented on the murder charge and, for all the record indicates, very likely was under the mistaken impression that he had never been indicted. Finally, the testimony of state prosecutors at the evidentiary hearing, set out in detail above, demonstrates a shocking ignorance of the simple mechanics of the IAD and writs of habeas corpus ad prosequendum, and equally shocking lack of concern for defendants' speedy trial rights. While their conduct was negligent, rather than in bad faith, the lengthy delay certainly should weigh heavily against the Commonwealth.

Nevertheless, this court is constrained in its review of the SJC's decision by the AEDPA standard it must apply, according to which this court not only must “weigh the strength of the petitioner's constitutional claim but also must consider whether the state court's determination that no constitutional infraction occurred, even if incorrect, was objectively reasonable.” Rashad, 300 F.3d at 33. This already difficult-to-meet standard is even more daunting for petitioners in cases involving speedy trial claims. The deference due by the reviewing court is “heightened in a Barker -type case, because constructing a balance among the four factors ‘is more judicial art than science.'” Id. at 45 (quoting Look v. Amaral, 725 F.2d 4, 8 (1st Cir. 1984)). This court is mindful that “the state court's overall balancing of the Barker factors, not its handling of any single factor, is the proper focal point in this case.” Id. at 44. In other words, this court must evaluate “the strength of the state court's ultimate conclusion, rather than its announced rationale.” Id. at 35.

One only need look at the Supreme Court's analysis in Barker to conclude that the SJC's “ultimate conclusion” that Timi's speedy trial rights were not violated is “objectively reasonable.” There, the government was held responsible for the same amount of delay as in Timi's case, four years. Barker, 407 U.S. at 533-34. The Supreme Court recognized that “four years was too long” to wait to bring someone to trial, but nevertheless found that “[t]wo counterbalancing factors” tilted the balance in favor of the government. Id. at 534. “The first is that the prejudice was minimal.” Id. More important, the petitioner had “not want[ed] a speedy trial.” Id.

Similarly, in Rashad, the First Circuit considered a petition for habeas corpus, where the MAC had held that a delay of three and one-half years attributed to the government did not violate petitioner's speedy trial rights, because petitioner caused “a sizable portion” of the delay, his conduct after he was indicted reflected “inaction and avoidance” of the charges rather than an intent to assert his speedy trial rights, and he had failed to demonstrate any actual prejudice. Id. at 45-46. “[C]ed[ing] substantial deference to the state court's legal and factual conclusions,” the First Circuit held that “the state court's ultimate conclusion that the petitioner suffered no deprivation of his constitutional right to a speedy trial may not be inevitable, but that conclusion nonetheless falls within the sphere of objective reasonableness.” Id.

Here, the SJC agreed with the motion judge that Timi did not suffer actual prejudice by the delay. Further, it is uncontroverted that whatever the reason, Timi did not ever assert his right to a speedy trial. The SJC's “overall balancing” of the factors, where the government took four years to bring him to trial as a result of neglect of his case, is not so unreasonable that Timi's petition can be allowed. Nor can this court find unreasonable the SJC's decision that Nickoyan's speedy trial rights were violated, in comparison with its finding that Timi's rights were not violated, where the seven and one-half years Nickoyan waited is nearly twice the time that Timi did.

VI. Recommendation on Petitioner's Petition for Habeas Corpus.

For the reasons set out above, this court recommends to the district court that the petition be DENIED.

VII. Review of this Report and Recommendation by the District Court.

The parties are advised that any party who objects to this Report and Recommendation must file specific written objections with the Clerk of this Court within fourteen (14) days of the date of this Report and Recommendation. The objections must specifically identify the portion of this Report and Recommendation to which objections are made and state the basis for such objections. The parties are further advised that the United States Court of Appeals for the First Circuit has repeatedly indicated that failure to comply with Fed.R.Civ.P. 72(b) will preclude further appellate review. See Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-9 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).