AEDPA Deference Permits (at Least on Habeas Review) a Count-by-Count Speedy-Trial Remedy; Fifth Circuit Issues Rule 47.6 Summary Affirmance and Withdraws Prior Published Opinion

1. Introduction

Berryman v. Huffman is procedurally unusual and substantively significant—yet ultimately opaque—because the Fifth Circuit resolved the appeal by unpublished summary affirmance while a detailed dissent framed the underlying constitutional and AEDPA issues.

Brian Scott Berryman, the petitioner-appellant, was arrested in February 2017 and ultimately tried 1,233 days later on a Mississippi two-count indictment: (1) shooting into a dwelling (Count I) and (2) possession of a firearm after a felony conviction (Count II). After extended delays involving multiple judges, multiple appointed counsel issues, and repeated pro se speedy-trial requests, the state trial court applied Barker v. Wingo, 407 U.S. 514 (1972), found a speedy-trial violation as to Count I only, dismissed Count I, and proceeded to trial on Count II, resulting in a life sentence as a violent habitual offender.

On direct appeal, the Mississippi Court of Appeals affirmed, holding that the trial court properly evaluated prejudice and thus the speedy-trial violation in a count-specific way. See Berryman v. State, 337 So. 3d 1116 (Miss. Ct. App. 2021). Berryman then sought federal habeas relief under 28 U.S.C. § 2254. The district court denied relief but granted a certificate of appealability on the remedial question: whether a speedy-trial violation compels dismissal of the entire indictment (including all counts), or whether courts may dismiss only the affected count.

The Fifth Circuit’s substituted disposition provides no merits reasoning. The only substantive analysis in the provided text appears in Judge Dana M. Douglas’s dissent, which treats the case as controlled by Supreme Court holdings requiring dismissal of “the indictment” as the sole remedy once a speedy-trial violation is found.

2. Summary of the Opinion

Accordingly, the operative “opinion” does not articulate a new doctrinal test or explicit holding beyond the bottom-line result: the denial of § 2254 relief stands. The dissent, however, sets out an extensive framework contending that the state court’s count-by-count remedy was an unreasonable application of clearly established Supreme Court law governing the speedy-trial remedy.

3. Analysis

3.1 Precedents Cited (and Their Role in the Dispute)

Although the substituted panel disposition is summary, the dissent’s analysis is structured around AEDPA’s “clearly established Federal law” requirement and the Supreme Court’s speedy-trial remedy cases.

• Barker v. Wingo, 407 U.S. 514 (1972)
  

  Barker is foundational for two distinct propositions emphasized by the dissent: (i) the four-factor balancing test for whether a speedy-trial violation occurred (length of delay, reason for delay, assertion of the right, prejudice); and (ii) the remedy language: dismissal of the indictment as “the only possible remedy” once the right “has been deprived.”

  The dissent stresses that Barker’s flexibility applies to the violation determination, not to the remedy.

• Strunk v. United States, 412 U.S. 434 (1973)
  

  Strunk is the dissent’s principal remedy authority. The Seventh Circuit attempted to craft an alternative remedy (sentence credit) after an uncontested speedy-trial violation; the Supreme Court reversed and reiterated that dismissal remains “the only possible remedy” (quoting Barker).

  For the dissent, Strunk forecloses any “intermediate” or “tailored” remedy—such as dismissing only one count while leaving other counts intact—once a speedy-trial violation has been found.

• White v. Woodall, 572 U.S. 415 (2014) and Yarborough v. Alvarado, 541 U.S. 652 (2004)
  

  These cases supply the dissent’s AEDPA lens. White rejects habeas relief that depends on extending Supreme Court precedent to new contexts; Yarborough explains that general rules leave more room for reasonable disagreement, while specific rules leave less.

  The dissent uses these decisions to argue that, while Barker’s multi-factor test is general and judgment-laden, the remedy rule from Barker/Strunk is specific (“dismissal of the indictment”) and therefore leaves little room for “fairminded disagreement.”

• Betterman v. Mont., 578 U.S. 437 (2016)
  

  The dissent cites Betterman for the Supreme Court’s modern restatement of the Sixth Amendment speedy-trial remedy: “dismissal of the charges,” and that the Court has not treated the remedy as flexible or tailored, instead “demand[ing] termination of the prosecution.”

  The dissent treats this language as consistent with—and reinforcing—the inflexible remedy principle in Barker and Strunk.

• United States v. Loud Hawk, 474 U.S. 302 (1986)
  

  Cited to show the Supreme Court applying Barker in a multi-count context and discussing dismissal of “the indictment” as the severe remedy, suggesting (in the dissent’s view) that multi-count prosecutions are not exempt from the unitary dismissal remedy once a violation is found.

• United States v. Mann, 291 F. Supp. 268, 269, 275 (S.D.N.Y. 1968) and Beavers v. Haubert, 198 U.S. 77 (1905)
  

  Beavers appears in Barker as part of the historical explanation for a functional, contextual approach. Mann is the exemplar Barker directed courts to consult; the dissent notes Mann involved a multi-count indictment dismissed after a holistic speedy-trial analysis.

• AEDPA/standards cases: Andrew v. White, 145 S. Ct. 75 (2025) (per curiam); Poree v. Collins, 866 F.3d 235 (5th Cir. 2017); Lockyer v. Andrade, 538 U.S. 63 (2003); Carey v. Musladin, 549 U.S. 70 (2006); Williams v. Taylor, 529 U.S. 362 (2000); Bell v. Cone, 535 U.S. 685 (2002); Dorsey v. Stevens, 720 F.3d 309 (5th Cir. 2013).
  

  These authorities ground the dissent’s framing of “clearly established Federal law,” and the distinction between decisions “contrary to” Supreme Court law versus those that are an “unreasonable application” of it.

• Prince v. State of Ala., 507 F.2d 693 (5th Cir. 1975)
  

  Cited by the dissent to show that the Fifth Circuit previously applied Barker in a multi-count-indictment setting consistent with the idea that Barker’s framework and remedy are not limited to single-count cases.

• Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996)
  

  Mentioned in a footnote to rebut an argument that multiple judges’ disagreement itself proves “fairminded disagreement.” The dissent points to Williams v. Taylor’s caution against a subjective “reasonable jurist” approach.

3.2 Legal Reasoning

A. The central merits question (as framed by the COA)

The COA issue asks whether, once a court finds a Sixth Amendment speedy-trial violation under Barker v. Wingo, the remedy must be dismissal of the indictment “in whole,” or whether a court may (i) assess prejudice count-by-count and (ii) dismiss only the prejudiced count while allowing trial on remaining counts.

B. The dissent’s doctrinal structure

Judge Douglas’s dissent proceeds in three steps:

• Step 1: Identify “clearly established Federal law” on the remedy.

  The dissent treats Barker and Strunk v. United States as establishing a bright-line remedial rule: once a speedy-trial violation is found, dismissal of the indictment is mandatory and exclusive.

• Step 2: Apply AEDPA’s “unreasonable application” standard.

  Under 28 U.S.C. § 2254(d)(1), the question is not whether the state court was wrong, but whether it unreasonably applied Supreme Court holdings. The dissent argues the remedy rule is sufficiently specific that refusing to dismiss the indictment (after finding a violation on any count) is beyond “fairminded disagreement,” invoking White v. Woodall and Yarborough v. Alvarado.

• Step 3: Reject the state court’s attempt to “limit” Barker by semantics and context.

  The Mississippi Court of Appeals reasoned that Barker did not say “the entire indictment” and did not discuss multi-count indictments. The dissent responds that (i) an indictment can contain multiple counts, so “dismissal of the indictment” necessarily addresses the charging instrument as a whole; (ii) Barker itself pointed courts to United States v. Mann, which dismissed a multi-count indictment; and (iii) later Supreme Court descriptions (Betterman v. Mont.; United States v. Loud Hawk) treat dismissal/termination as the sole remedy, not as a count-specific option.

C. What the substituted per curiam affirmance does (and does not) decide

The panel’s substituted disposition is a Rule 47.6 summary affirmance without an accompanying merits explanation and is explicitly unpublished. As a practical matter, it leaves the district court’s denial of habeas relief in place and thereby rejects Berryman’s claim for relief on the COA question in this case. But because the court provides no reasoning, the decision supplies little guidance on:

• whether the Fifth Circuit agreed with the Mississippi court’s count-by-count remedy as a matter of Sixth Amendment doctrine;
• or instead held only that, under AEDPA deference, Supreme Court law is not “clearly established” on the multi-count remedy point;
• or whether some alternative ground supports affirmance (e.g., how prejudice and counts interact under Barker).

3.3 Impact

A. Immediate impact in the Fifth Circuit

Because the substituted disposition is unpublished and issued via Rule 47.6, its precedential value is minimal by design; it does not announce a developed rule for future panels to apply. The most concrete “impact” is negative: the court’s withdrawal of Berryman v. Huffman, 157 F.4th 399 (5th Cir. 2025), removes whatever precedential or persuasive force that earlier published opinion might have carried.

B. Practical impact for habeas litigants raising speedy-trial remedy claims

Even absent reasoning, the affirmance signals the difficulty of converting a speedy-trial remedy argument into habeas relief under AEDPA. Speedy-trial litigation often turns on:

• the generality of the Barker test (which increases AEDPA “leeway”); and
• whether the Supreme Court has spoken with the requisite specificity to the remedial scenario presented (here, a multi-count indictment with prejudice found count-specifically).

Judge Douglas’s dissent underscores the counterpoint: the remedy (dismissal) is treated as specific and mandatory in Supreme Court holdings even if the violation inquiry is flexible.

C. State-court implications (count-by-count prejudice findings)

The state trial court’s approach—treating the first three Barker factors globally but analyzing prejudice separately by count—reflects a prosecutorial and judicial impulse to preserve viable charges in multi-count cases. The dissent warns that such “intermediate remedy” tailoring risks undermining the Sixth Amendment’s structural protection by allowing the state to benefit from unconstitutional delay on at least some portion of the prosecution.

4. Complex Concepts Simplified

• Barker v. Wingo balancing test: A four-factor, case-specific balancing framework (delay length; reason; defendant’s assertion; prejudice). No single factor automatically decides the case.
• Speedy-trial “prejudice”: Harm the delay causes, including oppressive pretrial incarceration, anxiety, and—most importantly—impairment of the defense (e.g., lost witnesses). Here, a defense witness (Marshall Edge) died during the delays.
• “Dismissal of the indictment” as a remedy: Terminating the prosecution by dismissing the formal charging instrument. The dissent reads Supreme Court precedent as making this remedy mandatory once a violation is found.
• AEDPA / 28 U.S.C. § 2254(d)(1): A federal habeas court may not grant relief unless the state court’s merits decision was “contrary to” or an “unreasonable application” of “clearly established Federal law” as determined by the Supreme Court.
• “Clearly established Federal law”: Supreme Court holdings (not dicta) in existence when the state court decided the case.
• “Unreasonable application” vs. “incorrect”: A state court can be wrong yet still not “unreasonable” under AEDPA. Relief requires error beyond fairminded disagreement.
• Certificate of appealability (COA): A threshold permission to appeal in habeas cases, limited to specific issues identified by the district court.
• Rule 47.6 summary affirmance: A Fifth Circuit mechanism to affirm without a written opinion, typically used when the court concludes an opinion would have no precedential value.
• Nunc pro tunc: A court order entered “now for then,” used to correct the record to reflect what should have occurred earlier (here, appointment of counsel).
• Mandamus petition: A request that a higher court compel a lower court to act (here, to rule on a motion to dismiss).

5. Conclusion

Berryman v. Huffman ends (for now) not with an articulated Fifth Circuit rule, but with a procedural reset and a summary affirmance: the panel withdrew its earlier published opinion and affirmed the denial of § 2254 relief without explanation. The decision’s most notable doctrinal content is found in Judge Douglas’s dissent, which forcefully argues that Supreme Court holdings in Barker v. Wingo and Strunk v. United States clearly establish a single, mandatory remedy for a speedy-trial violation—dismissal of the indictment—and that a state court unreasonably applied that law by dismissing only one count of a multi-count indictment after finding a violation.

For practitioners, the case highlights two enduring tensions: (1) the remedial absolutism traditionally associated with speedy-trial violations versus modern judicial instincts to tailor relief, and (2) the gap that can open on habeas review between what may be constitutionally compelled and what AEDPA permits a federal court to enforce absent a sufficiently specific Supreme Court holding on the precise factual permutation presented.