Hislop #278899 v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James Scott Hislop,
Petitioner,
v.
State of Arizona, et al.,
Respondents.
No. CV-25-04037-PHX-GMS (DMF)
ORDER
This matter is before the Court on its own review regarding the record materials
filed with this Court in these proceedings.
I. PROCEDURAL POSTURE
Petitioner James Scott Hislop (“Petitioner” and/or “Hislop”) initiated these
proceedings on October 21, 2025 (see Doc. 1 at 11),1 by filing a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1). The Court’s Screening
and Service Order regarding the Petition recounts:
Petitioner raises one ground for relief, alleging a violation of his Sixth
1 The Petition was docketed by the Clerk of Court on October 28, 2025 (Doc. 1 at 1). The
Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing
system on October 21, 2025 (Id. at 11). Under applicable law, October 21, 2025, is the
operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is
considered to be filed on the date a prisoner hands the petition to prison officials for
mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison
mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs,
dates, and attests the petition was placed in the prison mailing system); see also Rule 3,
Rules Governing Section 2254 Cases.
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Amendment right to a speedy trial. Petitioner contends he presented this issue
to the Arizona Court of Appeals and Arizona Supreme Court. The Court will
require Respondents to answer the Petition. 28 U.S.C. § 2254(a).
(Doc. 5 at 1-2). In the Petition, Petitioner asserts that his right to a speedy trial was violated
because the allegations against Petitioner were made in November 2014, the indictment
against Petitioner was filed in July 2015, the state made only one attempt to serve
Petitioner, Petitioner became aware of the case against him in October 2020, and a defense
witness died in December 2019 (Doc. 1 at 6). In short, Petitioner’s Sixth Amendment
speedy trial claim is based on the approximately five-year delay between indictment and
arrest (Id.).
Petitioner submitted several attachments with his Petition: the Anders brief filed
with the Arizona Court of Appeals by Petitioner’s appellate counsel on direct appeal (Doc.
1-1 at 1-10); documents reflecting a November 1, 2021, filing stamp of the Pinal County
Superior Court on the first page which were apparently signed by Petitioner entitled
“Affidavit of Demand for Dismissal” and “Notice of Attorneys Not Allowed to Testify” in
which multiple arguments and issues are raised including an assertion of violation of
Petitioner’s federal constitutional speedy trial rights for the delay between indictment and
arrest, citing Barker v. Wingo, 407 U.S. 514 (1972) (Doc. 1-1 at 11-20); the Arizona Court
of Appeals’ August 4, 2023, mandate in Petitioner’s direct appeal (Id. at 21-23); and the
Arizona Court of Appeals May 25, 2023, memorandum decision affirming Petitioner’s
convictions and sentences in Petitioner’s direct appeal (Id. at 24-26).
On December 15, 2025, Respondents filed an Answer to Petition for Writ of Habeas
Corpus (“Answer”) (Doc. 8), in which Respondents concede that the Petition was timely
filed and that Petitioner’s Sixth Amendment speedy trial claim is properly exhausted (Id.
at 4-5). Respondents argue that Petitioner’s Sixth Amendment speedy trial claim fails on
the merits because Petitioner has not shown that the Arizona Court of Appeals
unreasonably applied clearly established federal law (Id. at 6-8). In their Answer,
Respondents represent:
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As required by Rule 5 of the Rules Governing 28 U.S.C. § 2254 cases,
Respondents submit as exhibits all relevant pleadings and orders from
Hislop’s state court proceedings.
Respondents are in possession of the following transcripts: 09/03/2021 (oral
argument); 05/10/2022 (trial); 05/10/2022 (trial); 05/11/2022 (trial);
06/06/2022 (sentencing).
The following proceedings were recorded, but not transcribed: 07/27/2015
(grand jury); 07/29/2016 (warrant review hearing); 07/28/2017 (warrant
review hearing); 07/27/2018 (warrant review hearing); 10/09/2020 (review
hearing); 10/30/2020 (arraignment); 11/13/2020 (arraignment); 01/04/2021
(settlement conference); 03/03/2021 (settlement conference); 04/12/2021
(oral argument); 06/14/2021 (status conference); 11/01/2021 (status
conference); 02/07/2022 (pretrial conference); 02/14/2022 (trial setting);
04/18/2022 (pretrial conference).
(Doc. 8 at 1-2).
With the Answer, Respondents attached the following: the Arizona Court of
Appeals’ May 25, 2023, memorandum decision on direct appeal affirming Petitioner’s
convictions and sentences (Id. at 12-15 (Exhibit A)); Petitioner’s Anders brief filed with
the Arizona Court of Appeals by Petitioner’s appointed appellate counsel asking the court
of appeals to review the delay between Petitioner’s indictment and arrest for fundamental
error (Id. at 16-26 (Exhibit B)); Petitioner’s pro se supplemental brief filed with the Arizona
Court of Appeals on direct appeal which included argument that the delay between
indictment and arrest violated Petitioner’s Sixth Amendment right to a speedy trial (Id. at
27-40 (Exhibit C)); Petitioner’s September 2023 post-conviction relief (“PCR”) notice
filed with the Pinal County Superior Court (Id. at 41-45 (Exhibit D)); the notice of
completion filed with the Pinal County Superior Court by Petitioner’s appointed PCR
counsel averring that counsel found no colorable PCR claim (Id. at 46-58 (Exhibit E));
Petitioner’s pro se PCR petition asserting among other things that Petitioner’s right to a
speedy trial was violated by the delay between indictment and arrest (Id. at 59-85 (Exhibit
F)); the Pinal County Superior Court’s order denying Petitioner’s PCR petition (Id. at 86-
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88 (Exhibit G)); Petitioner’s petition for review filed with the Arizona Court of Appeals
asking the court of appeals to review the trial court’s denial of Petitioner’s PCR petition
regarding the delay between indictment and arrest (Id. at 89-91 (Exhibit H)); the Arizona
Court of Appeals’ July 7, 2025, order warning that Petitioner’s petition for review would
be dismissed if a compliant petition was not filed (Id. at 92-94 (Exhibit I)); the Arizona
Court of Appeals’ August 11, 2025, order dismissing Petitioner’s petition for review
because Petitioner did not file a petition in accordance with Arizona Rule of Criminal
Procedure 32.16(c) (Id. at 95-97 (Exhibit J)); the July 27, 2015, indictment charging
Petitioner with three counts of sexual conduct with a minor (Id. at 98-100 (Exhibit K)); the
October 7, 2020, Pinal County Superior Court order detaining Petitioner (Id. at 101-102
(Exhibit L)); the Pinal County Superior Court’s minute entry regarding Petitioner’s
November 13, 2020, arraignment (Id. at 103-106 (Exhibit M)); and the Pinal County
Superior Court’s minute entry regarding day one of Petitioner’s jury trial held on May 10,
2022 (Id. at 107-111 (Exhibit N)).
Petitioner filed a timely Reply in support of the Petition (Doc. 9); there were no
additional court records or other materials filed with the Reply’s succinct two-page
argument (Id.).
This matter is on referral to the undersigned for further proceedings and a report and
recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure
(Doc. 5 at 4).
II. SUMMARY OF PERTINENT STATE COURT PROCEEDINGS BASED ON
RECORD PRESENTLY BEFORE THE COURT
Based on record materials presently before the Court, it appears that on July 27,
2015, a Pinal County grand jury indicted Petitioner on three counts of sexual conduct with
a minor regarding alleged conduct in 2012 and 2013 (Doc. 8 at 99-100). The Arizona
Court of Appeals recounted the factual basis underlying the indictment:
When Hislop’s daughter was eleven years old, Hislop touched the inside and
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outside of her genitals with his hands and touched “himself,” and had her
“grab” and “rub” his penis while she was naked.
(Id. at 14). State v. Hislop, No. 2 CA-CR 2022-0097, 2023 WL 3645130, at *1 (Ariz. Ct.
App. May 25, 2023).2
It appears that Petitioner was arrested on the indictment charges in early October
2020 and ordered held in custody pending trial (Doc. 8 at 101-102). On November 13,
2020, Petitioner was arraigned and entered a plea of not guilty (Id. at 104-06). As
recounted by the Arizona Court of Appeals:
At the final pretrial conference held on February 7, 2022, the trial court
expressly found that the parties’ stipulation of “Agreement as to Rule 8[,
Ariz. R. Crim. P.,] Calculation,” entered on November 12, 2021 was binding
upon the parties. Despite Hislop’s statement in February that he did not want
to waive Rule 8 time, multiple pleadings in the record establish that he had
done so. The stipulation noted the exclusion of the period of time between
March 18, 2020 and March 31, 2021 from the Rule 8 calculation, pursuant
to Ariz. Sup. Ct. Admin. Order No. 2021-109 (July 14, 2021), due to the
COVID-19 pandemic. The court also found that, due to “extraordinary
circumstances” relating to the pending change of defense counsel, delay was
“indispensable to the interest of justice,” the trial scheduled for February 22,
2022 was vacated, and time was “excluded.” And, at the February 14, 2022
trial-setting conference, the court additionally found that, based on the
parties’ previous stipulation, Hislop had “knowing[ly], intelligently and
voluntarily waived the potential delay from March 29, 2022 to the proposed
trial date of May 10, 2022.”
(Doc. 8 at 14-15). Hislop, 2023 WL 3645130, at *1.
Following the May 2022 jury trial, Petitioner was convicted of three counts of
sexual conduct with a minor (Doc. 8 at 14). Hislop, 2023 WL 3645130, at *1. The trial
court sentenced Petitioner to consecutive terms of twenty years’ imprisonment on counts
one and three and a life term of imprisonment on count two without the possibility of
2 The state court’s stated facts are entitled to the presumption of correctness. See 28 U.S.C.
§ 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas
proceedings in federal courts, the factual findings of state courts are presumed to be
correct . . . .”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting
argument that the statement of facts in an Arizona Supreme Court opinion should not be
afforded the presumption of correctness).
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release until Petitioner had served thirty-five years (Doc. 8 at 14). Hislop, 2023 WL
3645130, at *1.
In Petitioner’s direct appeal, Petitioner’s appellate counsel filed with the Arizona
Court of Appeals a brief pursuant to Anders v. California, 386 U.S. 738 (1967), averring
that appellate counsel had searched the record and found no issue that is not frivolous (Id.
at 17-26). Nevertheless, Petitioner’s appellate counsel noted that fundamental error review
may be warranted on an issue that appellate counsel reported was never raised in the trial
court—whether Petitioner’s Sixth Amendment right to a speedy trial as set forth under
Barker v. Wingo, 407 U.S. 514 (1972), and State v. Broughton, 156 Ariz. 394, 752 P.2d
483 (1988), was violated due to the delay between Petitioner’s July 27, 2015, indictment
and his November 13, 2020, arraignment (Id. at 23-24; see also id. at 19).
Despite appellate counsel’s statement in the Anders brief that the Sixth Amendment
speedy trial issue was never raised in the trial court, it does appear the issue was raised in
the trial court. Noteworthy is that attached to the Petition are documents reflecting a
November 1, 2021, filing stamp of the Pinal County Superior Court on the first page which
were apparently signed by Petitioner entitled “Affidavit of Demand for Dismissal” and
“Notice of Attorneys Not Allowed to Testify” in which multiple arguments and issues are
raised including an assertion of violation of Petitioner’s federal constitutional speedy trial
rights for the delay between indictment and arrest, citing Barker v. Wingo, 407 U.S. 514
(1972) (Doc. 1-1 at 11-20). As later recounted by Petitioner’s PCR counsel in describing
the underlying trial court proceedings:
On or around November 1, 2021, Petitioner filed, pro se, an “Affidavit of
Demand for Dismissal” pursuant to the 6th Amendment citing “fraud in the
contract” and failure of due process of law, among other things. The State
subsequently filed a Rule 8 calculation and a hearing was held. The Court
found that the Stipulation regarding Rule 8 calculations was binding and that
the jury trial would start within the Rule 8 timeframe. Petitioner’s counsel,
Morgan Alexander was withdrawn and new counsel was appointed.
(Doc. 8 at 49-50). Nevertheless, no related state court records were provided by
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Respondents with their Answer (Doc. 8), not even the stipulation regarding Rule 8
calculations referred to by PCR counsel (Id. at 49-50) and referenced by the Arizona Court
of Appeals in affirming Petitioner’s convictions and sentences (Doc. 8 at 14-15). Hislop,
2023 WL 3645130, at *1.
After his appellate counsel filed an Anders brief with the Arizona Court of Appeals
in Petitioner’s direct appeal, Petitioner filed a pro se supplemental brief asserting several
violations of the Arizona Rules of Criminal Procedure and violation of his Sixth
Amendment right to a speedy trial (Doc. 8 at 28-40). In support of his Sixth Amendment
speedy trial argument, Petitioner cited Doggett v. United States, 505 U.S. 647 (1992),
which Petitioner accurately described as having held that the “delay of 8½ years between
indictment and arrest resulting from government’s negligent failure to seek accused
violated [Doggett’s] constitutional right to speedy trial despite lack of showing of actual
prejudice as government’s egregious persistence in failing to prosecute was sufficient to
warrant relief without showing of particularized trial prejudice” (Id. at 32, 37).
On May 25, 2023, the Arizona Court of Appeals affirmed Petitioner’s convictions
and sentences (Id. at 13-15). Hislop, 2023 WL 3645130, at *1-2. Regarding speedy trial
rights, the Arizona Court of Appeals reasoned:
¶3 Insofar as Hislop claims his speedy trial rights were violated, the record
does not support his claim. At the final pretrial conference held on February
7, 2022, the trial court expressly found that the parties’ stipulation of
“Agreement as to Rule 8[, Ariz. R. Crim. P.,] Calculation,” entered on
November 12, 2021 was binding upon the parties. Despite Hislop’s statement
in February that he did not want to waive Rule 8 time, multiple pleadings in
the record establish that he had done so. The stipulation noted the exclusion
of the period of time between March 18, 2020 and March 31, 2021 from the
Rule 8 calculation, pursuant to Ariz. Sup. Ct. Admin. Order No. 2021-109
(July 14, 2021), due to the COVID-19 pandemic. The court also found that,
due to “extraordinary circumstances” relating to the pending change of
defense counsel, delay was “indispensable to the interest of justice,” the trial
scheduled for February 22, 2022 was vacated, and time was “excluded.” And,
at the February 14, 2022 trial-setting conference, the court additionally found
that, based on the parties’ previous stipulation, Hislop had “knowing[ly],
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intelligently and voluntarily waived the potential delay from March 29, 2022
to the proposed trial date of May 10, 2022.” We find unpersuasive Hislop’s
assertion that the “COVID pandemic . . . should be a moot condition since
this was a 2015 case.”
¶4 We also reject Hislop’s argument that he is entitled to relief because of
the delay between his indictment and his arraignment. Rule 14.2(b), Ariz. R.
Crim. P., provides, “If the court cannot hold the arraignment within the time
specified . . . because the defendant has not yet been arrested or summoned,
or is in custody elsewhere, the court must hold the arraignment as soon as
possible after those time periods.” Not only has Hislop failed to provide
support from the record for his apparent argument that subsection (b) does
not apply here, but he has not established that he was prejudiced by the timing
of the arraignment. See State v. Leenhouts, 218 Ariz. 346, ¶ 9 (2008)
(“Prejudice exists if the failure to arraign a defendant deprives him or her of
notice of the charges and thereby deprives the defendant of the opportunity
to defend against those charges.”).
(Doc. 8 at 14-15). Hislop, 2023 WL 3645130, at *1-2. Further, the court of appeals stated
that its independent review of the record did not reveal any fundamental, prejudicial error
in Petitioner’s case (Doc. 8 at 15). Hislop, 2023 WL 3645130, at *2. The Arizona Court
of Appeals did not cite or discuss Doggett v. United States, 505 U.S. 647 (1992), Barker v.
Wingo, 407 U.S. 514 (1972), or the factors set forth in Barker in rendering decision in
Petitioner’s direct appeal (Doc. 8 at 13-15). Hislop, 2023 WL 3645130, at *1-2. It also
appears that none of the state court cases cited in the decision reference or discuss the
Barker factors. Moreover, it is not clear that Rule 8 or Rule 14.2(b) would be dispositive
of Petitioner’s argument that he was deprived of his Sixth Amendment constitutional
speedy trial right by the delay between indictment and arrest as nothing in the record
suggests that Petitioner was in custody between indictment and arrest on the indictment.3
See Ariz. R. Crim. P. 8 generally; see also Ariz. R. Crim. P. 8.3. Pertinent to the record
issues addressed herein, Respondents did not include as part of the record provided with
their Answer (Doc. 8) the “multiple pleadings in the record establish that” Petitioner
3 Publicly available records reflect that Petitioner was not in Arizona Department of
Corrections, Rehabilitation & Reentry custody during the relevant time period. See
https://corrections.az.gov/inmate-data-search.
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waived Rule 8 time referenced by the Arizona Court of Appeals (Doc. 8 at 15). Hislop,
2023 WL 3645130, at *1.
In his Petition, Petitioner asserts that he filed a petition for review with the Arizona
Supreme Court on February 12, 2024, and the supreme court dismissed the petition as
untimely (Doc. 1 at 3).
Additionally, the record presently before this Court reflects that Petitioner initiated
PCR proceedings by filing a pro per PCR notice with the trial court (Doc. 8 at 42-45).
Following a review of the record, appointed PCR counsel filed a notice of completion
averring that counsel found no colorable claims for post-conviction relief (Id. at 47-56).
Petitioner thereafter filed a timely pro per PCR petition in which Petitioner again argued
that his federal constitutional Sixth Amendment speedy trial rights were violated by the
delay between indictment and arrest (Id. at 60-65). After the state filed a response and
Petitioner filed a reply, the trial court denied Petitioner’s pro per PCR petition (Id. at 87).
On June 24, 2025, Petitioner filed a petition for review with the Arizona Court of Appeals
(Id. at 90-91). On July 7, 2025, the court of appeals issued an order notifying Petitioner
that his petition for review did not comply with Arizona Rule of Criminal Procedure
32.16(c) and granting Petitioner leave to refile his petition for review in compliance with
Rule 32.16(c) no later than August 6, 2025 (Id. at 93). Petitioner did not refile his petition
for review, and the Arizona Court of Appeals dismissed the proceedings on August 11,
2025 (Id. at 96).
III. SUMMARY OF LEGAL FRAMEWORK
A. Rules Regarding Provision of State Court Record Materials
In relevant part, Rule 5 of the Rules Governing Section 2254 Cases (“Rule 5”)
provides:
(c) Contents: Transcripts. The answer must also indicate what transcripts
(of pretrial, trial, sentencing, or post-conviction proceedings) are available,
when they can be furnished, and what proceedings have been recorded but
not transcribed. The respondent must attach to the answer parts of the
transcript that the respondent considers relevant. The judge may order that
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the respondent furnish other parts of existing transcripts or that parts of
untranscribed recordings be transcribed and furnished. If a transcript cannot
be obtained, the respondent may submit a narrative summary of the evidence.
(d) Contents: Briefs on Appeal and Opinions. The respondent must also
file with the answer a copy of:
(1) any brief that the petitioner submitted in an appellate court
contesting the conviction or sentence, or contesting an adverse
judgment or order in a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate court
relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court relating
to the conviction or the sentence.
In addition, Rule 7, Rules Governing Section 2254 Cases, provides:
(a) In General. If the petition is not dismissed, the judge may direct the
parties to expand the record by submitting additional materials relating to the
petition. The judge may require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters
predating the filing of the petition, documents, exhibits, and answers under
oath to written interrogatories propounded by the judge. Affidavits may also
be submitted and considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against
whom the additional materials are offered an opportunity to admit or deny
their correctness.
Further, Rule 8(b), Rules Governing Section 2254 Cases, provides:
(a) Determining Whether to Hold a Hearing. If the petition is not
dismissed, the judge must review the answer, any transcripts and records of
state-court proceedings, and any materials submitted under Rule 7 to
determine whether an evidentiary hearing is warranted
See also Rule 10, Rules Governing Section 2254 Cases (“A magistrate judge may perform
the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.”).
///
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B. Merits Review Standard
On habeas review of claims adjudicated on the merits in a state court proceeding,
relief can only be granted if Petitioner demonstrates that the state court’s adjudication of
the claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) 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). This is a “‘highly deferential standard for evaluating state-court rulings’ which
demands that state-court decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal citation omitted) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “look[s] to the last reasoned state
court decision” to make a determination on a claim pursuant to Section 2254(d). White v.
Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 584 U.S. 122, 125
(2018)).
A state court decision is “contrary to” clearly established federal law if the decision
applies a rule that contradicts the governing law set forth in Supreme Court precedent,
thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter
of law, or if it confronts a set of facts that is materially indistinguishable from a decision
of the Supreme Court but reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-
06 (2000). Under the “unreasonable application” prong of Section 2254(d)(1), a federal
habeas court may grant relief where a state court “identifies the correct governing legal
rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the
particular . . . case” or “unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal
court to find a state court’s application of Supreme Court precedent “unreasonable” under
Section 2254(d)(1), the petitioner must show that the state court’s decision was not merely
incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
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To make a determination pursuant to Section 2254(d)(1), the Court first identifies
the “clearly established Federal law,” if any, that governs the sufficiency of the claims on
habeas review. “Clearly established” federal law consists of the holdings of the United
States Supreme Court which existed at the time the petitioner’s state court conviction
became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable
application of federal law is different from an incorrect or erroneous application of federal
law.” Id. (emphasis in original). Under AEDPA, “[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.” Richter, 562 U.S. at 101.
Accordingly, to obtain habeas relief from this Court, the petitioner “must show far more
than clear error.” Klein v. Martin, No. 25–51, 2026 WL 189976, at *4 (U.S. Jan. 26, 2026)
(internal quotation marks omitted) (quoting Richter, 562 U.S. at 102). The petitioner must
“establish that the state court ‘blunder[ed] so badly that every fairminded jurist would
disagree’ with the decision.” Id. (quoting Mays v. Hines, 592 U.S. 385, 392 (2021)).
Regarding Section 2254(d)(2), a state court decision “based on a factual
determination will not be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained,
to find that a factual determination is unreasonable under Section 2254(d)(2), the court
must be “convinced that an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported by the record.” Taylor
v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v.
Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard—one that will
be satisfied in relatively few cases.” Id.
The petitioner bears the burden of rebutting the state court’s factual findings “by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The Supreme Court has not
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defined the precise relationship between Section 2254(d)(2) and Section 2254(e)(1) but has
clarified “that a state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.” See
Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).
Where no state court has ruled on the merits of a petitioner’s claim, this Court will
review the claim de novo. Cone v. Bell, 556 U.S. 449, 472 (2009); see also Pirtle v.
Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002).
C. U.S. Constitution Sixth Amendment Speedy Trial Right
The Sixth Amendment guarantees an accused defendant the right to a speedy trial.
Barker v. Wingo, 407 U.S. 514, 515 (1972); see also U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”).
The Supreme Court of the United States has described the Sixth Amendment speedy trial
right as “amorphous, slippery, and necessarily relative.” Vermont v. Brillon, 556 U.S. 81,
89 (2009) (internal quotation marks omitted) (quoting Barker, 407 U.S. at 522).
Accordingly, the Supreme Court has identified four factors courts must consider in
evaluating a Sixth Amendment speedy trial claim: (1) the length of delay, (2) the reason
for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.
Barker, 407 U.S. at 530.4 No one factor is determinative; all factors and relevant
circumstances must be considered in the court’s analysis. Id.
The length of delay factor operates as a “triggering mechanism” such that “[u]ntil
there is some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors . . . .” Id. The Supreme Court has not set a bright-line rule on what
4 Article II, section 24 of the Arizona Constitution contains a speedy trial guarantee largely
identical to the Sixth Amendment’s guarantee. Compare Ariz. Const. art. 2, § 24 (“In
criminal prosecutions, the accused shall have . . . a speedy public trial”), with U.S. Const.
amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .”). The Arizona Supreme Court applies the factors outlined in Barker to
analyze a speedy trial claim under both the Arizona Constitution and the United States
Constitution. See State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991); see also
State v. Burkett, 179 Ariz. 109, 114, 876 P.2d 1144, 1149 (Ct. App. 1993) (“Arizona
Supreme Court applies the standard found in Barker v. Wingo to analyze a speedy trial
claim” (citing Schaaf, 169 Ariz. at 327, 819 P.2d at 913)).
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constitutes a presumptively prejudicial delay but rather has instructed that “the length of
delay that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case.” Id. at 530-31. By way of example, “the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.” Id. at 531.
As to the second factor, courts consider “whether the government or the criminal
defendant is more to blame for the delay.” Doggett v. United States, 505 U.S. 647, 651
(1992); see Barker, 407 U.S. at 531. For example, “[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. On the other hand, a “neutral reason such as negligence or
overcrowded courts should be weighted less heavily” and “a valid reason, such as a missing
witness, should serve to justify appropriate delay.” Id.
Third, courts consider whether and to what extent the defendant asserted his right.
Id. The defendant’s assertion of his speedy trial right is “entitled to strong evidentiary
weight” but a defendant’s “failure to assert the right will make it difficult for a defendant
to prove that he was denied a speedy trial.” Id.
Finally, courts must consider prejudice to the defendant. Id. In the prejudice
analysis the Supreme Court has identified interests of the defendant that must be
considered: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”
Id. (citations omitted). The Supreme Court instructed that “the most serious [interest] is
the last, because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is
obvious.” Id.
IV. RECORD SUPPLEMENTATION
Upon review, the Court will order supplementation of the record before this Court
in order to assist the Court in evaluating Petitioner’s habeas claim and Respondents’
arguments in opposition.
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Without reviewing the state court record materials, it is difficult to discern the
breadth of additional state court record materials pertinent to the Sixth Amendment speedy
trial right issues. Nevertheless, it is clear that at least some supplementation is needed.
Respondents argue the merits of Petitioner’s Sixth Amendment speedy trial claim and
contend that Petitioner’s “assertion of his rights was equivocal at best” and that Petitioner
“agreed to some of the delay through his stipulations and waivers” (Doc. 8 at 8). Yet,
Respondents did not attach to their Answer any trial court filings or transcripts of pretrial
hearings regarding Petitioner’s agreement to the state’s Rule 8, Ariz. R. Crim. P.,
calculation. Further, a Petition attachment appears to indicate that Petitioner himself raised
the constitutional speedy trial issue in the trial court in November 2021 and there was a
hearing regarding such apparently after additional filings (Doc. 1-1 at 11, 13-14; see also
Doc. 8 at 15, 49-50). Also, Respondents argue regarding the merits of Petitioner’s Sixth
Amendment speedy trial claim that “[t]here is certainly no evidence that the State was
negligent in its efforts to locate Hislop” (Doc. 8 at 8). Nevertheless, Respondents did not
furnish transcripts for the Court’s review of law enforcement trial or other testimony (see
id. at 22, 111). Also noteworthy is that the record reflects that the trial court denied
Petitioner’s PCR petition which raised the speedy trial issue after considering Petitioner’s
pro se PCR petition filed April 3, 2024; the state’s response filed December 13, 2024; and
Petitioner’s reply filed January 13, 2025 (Id. at 87). Respondents have furnished a copy of
Petitioner’s pro se PCR petition (Id. at 60-85), but Respondents have not filed copies of
the state’s response and Petitioner’s reply (see id. at 11). Further, it appears that any
incarceration of Petitioner during the relevant timeframe is pertinent to the issues under
consideration in this matter.
Thus, the Court will enter orders for record supplementation, recognizing that the
orders may be broader than ultimately needed to decide the issues before the Court.5
5 Nevertheless, specifically ordering compliance with Rule 5 of the Rules Governing
Section 2254 Cases is not overly broad; in fact, such order is redundant to the Court’s
previous order (Doc. 5 at 4, lines 7-8).
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Presently, this broader approach appears to be appropriate. After record supplementation,
the Court will enter a briefing schedule allowing the parties opportunity to supplement their
briefing in this matter.
Accordingly,
IT IS HEREBY ORDERED that Respondents shall file supplemental record
materials as stated herein no later than 45 days after the date of this Order.
IT IS FURTHER ORDERED that Respondents shall fully comply with Rule 5 of
the Rules Governing Section 2254 Cases.
IT IS FURTHER ORDERED that Respondents shall file with this Court and
provide a copy of the filing to Petitioner the below materials to the extent they are not
sealed or otherwise protected from disclosure:
1. All state court record materials pertinent to Petitioner’s habeas claim, whether
in the trial or appellate court.
2. All minute entries from the state trial court proceedings.
3. The transcripts in Respondents’ possession, which are the following transcripts:
09/03/2021 (oral argument); 05/10/2022 (trial); 05/10/2022 (trial); 05/11/2022
(trial); 06/06/2022 (sentencing).
4. All materials filed on November 1, 2021, in the trial court and other record
materials relating thereto (see Doc. 1 at 11-20) including the stipulation
referenced in the Arizona Court of Appeals decision (Doc. 8 at 14-15).
5. Transcriptions of the following proceedings, which Respondents report were
recorded, but not transcribed: 07/29/2016 (warrant review hearing); 07/28/2017
(warrant review hearing); 07/27/2018 (warrant review hearing); 10/09/2020
(review hearing); 10/30/2020 (arraignment); 11/13/2020 (arraignment);
01/04/2021 (settlement conference); 03/03/2021 (settlement conference);
04/12/2021 (oral argument); 06/14/2021 (status conference); 11/01/2021 (status
conference); 02/07/2022 (pretrial conference); 02/14/2022 (trial setting);
04/18/2022 (pretrial conference).
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6. Minute entries, orders, motions, notices, and other filings relating to the
following proceedings: 07/29/2016 (warrant review hearing); 07/28/2017
(warrant review hearing); 07/27/2018 (warrant review hearing); 10/09/2020
(review hearing); 10/30/2020 (arraignment); 11/13/2020 (arraignment);
01/04/2021 (settlement conference); 03/03/2021 (settlement conference);
04/12/2021 (oral argument); 06/14/2021 (status conference); 11/01/2021 (status
conference); 02/07/2022 (pretrial conference); 02/14/2022 (trial setting);
04/18/2022 (pretrial conference).
7. Any additional briefing in Petitioner’s direct appeal not previously filed as part
of the Answer.
8. All state court record materials in Petitioner’s PCR proceedings not previously
filed as part of the Answer, whether in the trial or appellate court.
9. A record of Petitioner’s incarceration dates in Arizona Department of
Corrections, Reentry & Rehabilitation for relevant timeframes.
IT IS FURTHER ORDERED that Respondents shall arrange and pay for the
transcription of the un-transcribed hearings above and shall furnish copies of the transcripts
pursuant to Rule 5(c), Rules Governing Section 2254 Cases; if Respondents are unable to
furnish a relevant transcript, Respondents must file a status report explaining their efforts
to obtain the transcript and why their efforts were unsuccessful no later than 45 days after
the date of this Order.
IT IS FURTHER ORDERED that to the extent that any of the materials referenced
above appear pertinent to the issues in these proceedings but are sealed and/or otherwise
protected, Respondents shall file a notice and/or motion with the Court identifying the
materials and suggesting a procedure to protect the interests at stake no later than 45 days
after the date of this Order.
///
///
///
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IT IS FURTHER ORDERED that to the extent it appears that the grand jury
transcript is pertinent to the issues in these proceedings, Respondents shall file a notice
and/or motion with the Court stating such and suggesting a procedure to protect the
interests at stake no later than 45 days after the date of this Order.
Dated this 5th day of February, 2026.
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