No Count-by-Count Cure: Fifth Circuit Requires Dismissal of the Entire Indictment When Any Count Violates the Sixth Amendment Speedy Trial Right

Introduction

In Berryman v. Huffman, No. 23-60627 (5th Cir. Oct. 16, 2025), the United States Court of Appeals for the Fifth Circuit held that when a court finds a violation of a defendant’s Sixth Amendment right to a speedy trial under Barker v. Wingo, the Constitution mandates a single, inflexible remedy: dismissal of the indictment. Crucially, the court held this remedy applies to the entire charging instrument even in multi-count indictments—rejecting a “count-by-count” approach to remedies.

The case arises from a 1,233-day pretrial delay in Mississippi during which a defense witness died. The state trial court found a speedy-trial violation as to Count I (shooting into a dwelling) but not Count II (possession of a firearm by a convicted felon), and it dismissed only Count I. After the conviction on Count II was affirmed on direct appeal, the federal district court denied habeas relief but granted a certificate of appealability on the remedy question. The Fifth Circuit reversed, directing issuance of the writ, and held that dismissing only the affected count is an unreasonable application of clearly established Supreme Court precedent—Barker v. Wingo and Strunk v. United States—under 28 U.S.C. § 2254(d)(1).

Summary of the Opinion

The Fifth Circuit majority (Judge Dana M. Douglas, joined by Judge Wiener) concluded that Supreme Court precedent “clearly establishes” that once a speedy trial violation is found, dismissal of the indictment—i.e., termination of the prosecution—is the only constitutionally permissible remedy, even in multi-count indictments.
The court held the Mississippi Court of Appeals unreasonably applied Barker and Strunk when it approved dismissal of only one count after finding a speedy trial violation.
Because the Mississippi appellate court correctly identified Barker but misapplied its remedial rule, the Fifth Circuit granted habeas relief under § 2254(d)(1) and remanded with directions to issue the writ.
Judge Irma Carrillo Ramirez dissented. She argued that AEDPA deference controls and that Supreme Court holdings have not squarely addressed remedies in the specific multi-count context, so relief is barred absent clearly established federal law addressing that precise question.

Factual and Procedural Background

Brian Scott Berryman was arrested in February 2017 after his neighbor reported gunfire into a bedroom. Police recovered .22-caliber casings and ammunition, found firearms at Berryman’s residence, and obtained a signed statement (which Berryman later disputed and claimed was misspelled). Berryman, a parolee on a prior life sentence for capital murder, had his parole revoked and remained in custody pending trial.

Berryman was indicted on September 22, 2017, for:

Count I: Shooting into a dwelling.
Count II: Possession of a firearm by a convicted felon (identifying a Marlin .22 rifle).

For 1,233 days, the case stalled due to a cascade of errors and disruptions: his name was omitted from the arraignment list; multiple counsel appointments failed or went uncommunicated; a continuance order was entered without his consent; judges rotated and one recused; and court terms were canceled. During the delay, defense witness Marshall Edge died—a central prejudice argument.

The state trial court applied Barker’s balancing test. It analyzed the first three factors globally but assessed prejudice count-by-count. It found a speedy-trial violation as to Count I and dismissed that count, but allowed trial to proceed on Count II. A jury convicted on Count II, and Berryman received a life sentence as a violent habitual offender with no parole. The Mississippi Court of Appeals affirmed the count-specific remedy over a dissent; the state supreme court and U.S. Supreme Court denied review. The federal district court denied § 2254 relief but certified the question whether Barker’s remedy must result in dismissal of the entire indictment.

Analysis

Precedents Cited and Their Role

Barker v. Wingo, 407 U.S. 514 (1972): Established the four-factor balancing test to determine a speedy trial violation—(1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice. Barker also held that the “only possible remedy” for a violation is dismissal of the indictment. The Fifth Circuit emphasized that Barker framed a flexible test for determining a violation, but not for the remedy.
Strunk v. United States, 412 U.S. 434 (1973): Reiterated that once a violation is found, courts may not craft lesser or tailored remedies (like sentence credits); dismissal of the indictment is the sole remedy. Strunk clarifies that Barker’s flexibility pertains to determining whether a violation occurred, not to the remedy.
United States v. Mann, 291 F. Supp. 268 (S.D.N.Y. 1968): Cited approvingly in Barker’s footnote as an example of sound analysis. The district court in Mann dismissed a multi-count indictment after a lengthy delay. The Fifth Circuit noted this linkage to reinforce that “indictment dismissal” naturally encompasses multi-count charging instruments.
Betterman v. Montana, 578 U.S. 437 (2016): Confirmed the preconviction focus of the Speedy Trial Clause and stated that the “sole remedy for a violation of the speedy trial right—dismissal of the charges—fits the preconviction focus of the Clause,” and that the Clause does not call for a flexible or tailored remedy; violation “demands termination of the prosecution.”
United States v. Loud Hawk, 474 U.S. 302 (1986): In a multi-defendant, multi-count setting, the Court referred to the “severe remedy of dismissing the indictment,” reinforcing that “indictment” is the operative unit of remedy.
AEDPA framework cases: The Fifth Circuit canvassed key AEDPA decisions, including Williams v. Taylor, 529 U.S. 362 (2000); Carey v. Musladin, 549 U.S. 70 (2006); Lockyer v. Andrade, 538 U.S. 63 (2003); Bell v. Cone, 535 U.S. 685 (2002); Yarborough v. Alvarado, 541 U.S. 652 (2004); White v. Woodall, 572 U.S. 415 (2014); and Cullen v. Pinholster, 563 U.S. 170 (2011). These cases define “clearly established” law, the “contrary to” and “unreasonable application” prongs, the “fairminded disagreement” threshold, and the deference due state courts under § 2254(d)(1).
Fifth Circuit authorities: The court referenced Goodrum v. Quarterman, 547 F.3d 249 (5th Cir. 2008) (violation requires dismissal of the indictment); Prince v. State of Alabama, 507 F.2d 693 (5th Cir. 1975) (post-Barker application in a multi-count indictment); and others to illuminate how lower courts have consistently understood the Supreme Court’s remedial command.

Legal Reasoning of the Majority

1) AEDPA Gatekeeping and Standard of Review

Because the Mississippi Court of Appeals adjudicated Berryman’s federal claim on the merits, the Fifth Circuit asked whether that decision was “contrary to” or an “unreasonable application” of clearly established Supreme Court law. The state court had identified Barker as the controlling framework, so the case turned on whether it unreasonably applied the Barker/Strunk remedial rule by dismissing only one count.

2) Remedy is a Specific Rule, Not a General Standard

The majority drew a sharp distinction between the flexible, context-specific test for determining whether a speedy trial violation occurred (Barker’s four factors), and the remedial rule for what happens once a violation is found. Relying heavily on Strunk, the court characterized the remedy—dismissal of the indictment—as a specific, inflexible rule that leaves little room for “fairminded disagreement” under AEDPA’s deferential standard.

In other words, even though courts enjoy latitude in weighing Barker’s factors, they do not enjoy latitude about the remedy. Once a violation is found, Strunk and Barker foreclose “less drastic” or tailored solutions.

3) Why “Indictment” Means the Entire Charging Instrument, Even with Multiple Counts

The state appellate court, and the State in federal habeas, argued that because Barker and Strunk involved single-count indictments and did not say “entire indictment,” their holdings do not clearly apply to multi-count charging instruments. The Fifth Circuit rejected this as slicing the Supreme Court’s language too finely. Several considerations drove the court’s conclusion:

Text and usage in Supreme Court cases: Barker, Strunk, and Loud Hawk consistently speak in terms of “the indictment” or “the charges” as the unit of remedial dismissal, not individual counts.
Barker’s approving nod to Mann: Barker pointed courts to Mann’s multi-count dismissal as a model. While Mann is not itself binding, the Supreme Court’s invocation of it supports the understanding that Barker’s remedial rule contemplates the full charging instrument, whether single- or multi-count.
Betterman’s formulation: The Supreme Court has more recently described the remedy as “termination of the prosecution.” That phrase is categorically incompatible with a partial or count-specific remedy if a speedy trial violation exists as to any part of the prosecution.

4) White v. Woodall and the “Extension” Objection

The State and the dissent leaned on White v. Woodall to argue that habeas relief cannot rest on a federal court “extending” a Supreme Court rule to new facts. The majority responded that it was not extending a general standard but applying a specific remedial command to a slightly different factual context—one where the charging instrument had multiple counts. Under Woodall and Yarborough, specific rules must be applied even as “new factual permutations arise,” so long as their application is beyond fairminded disagreement. The court held this was such a case: the speedy-trial remedy is specific, and count-by-count tailoring contradicts the Supreme Court’s holdings.

5) The Court’s Narrow Focus on Remedy

Notably, the Fifth Circuit did not second-guess the Mississippi court’s Barker balancing (including the count-specific prejudice inquiry) or whether a violation occurred on Count II. The certificate of appealability—and thus the ruling—was limited to the remedy. Having a violation on Count I was enough to answer the certified question: the Constitution does not permit a court to carve up the indictment and salvage other counts; dismissal must be global.

The Dissent’s View

Judge Ramirez dissented, emphasizing AEDPA’s deference and the Supreme Court’s insistence that “clearly established” federal law consists only of holdings, not dicta, and cannot be framed at a high level of generality. In her view:

Because the Supreme Court has not expressly addressed remedies when only some counts in a multi-count indictment suffer a speedy trial violation, the rule the majority applies is not “clearly established.”
Barker’s and Strunk’s references to “the indictment” came in single-count contexts, and their “only remedy” language could be dicta in the present context.
Lower court decisions, including Fifth Circuit cases, cannot supply “clearly established” law under § 2254(d)(1).
Given reasonable room for disagreement—reflected in multiple split decisions in the case—AEDPA prohibits relief.

The majority implicitly responded that the remedial rule is not dicta and is articulated in multiple Supreme Court decisions as a specific, categorical command. In their view, fairminded judges cannot reconcile a count-specific remedy with Supreme Court holdings that “violation of the right demands termination of the prosecution.”

Impact and Implications

Binding rule within the Fifth Circuit: State courts in Texas, Louisiana, and Mississippi cannot partially dismiss in response to a Barker violation on any count in a multi-count indictment; the entire indictment must be dismissed. Federal courts in the circuit applying AEDPA must treat a state court’s count-by-count remedy as an unreasonable application of Barker/Strunk.
Charging strategies: Prosecutors may respond by severing charges into separate indictments or by seeking separate case numbers to minimize the risk that a violation tied to one count will terminate the entire prosecution. Courts and counsel will need to scrutinize whether severance or separate instruments affect the speedy trial analysis given that prejudice and pretrial incarceration/anxiety often span the entire prosecution.
Trial court management: The decision heightens the stakes for docket control and for avoiding negligent delays. Administrative errors like missed arraignment listings, unfiled appointment orders, or unexplained continuances can now carry global remedial consequences.
Defense practice: Defense counsel in multi-count cases have a stronger incentive to press for global dismissal upon establishing a Barker violation on any count. Documentation of assertion of rights and prejudice (e.g., witness unavailability) becomes even more critical.
Habeas practice under AEDPA: Berryman is significant because it grants habeas relief on a remedial point under § 2254(d)(1). The majority’s analysis frames Barker/Strunk’s remedy as a “specific rule,” not a “general standard,” narrowing the State’s appeal to fairminded disagreement.
Likelihood of further review: The dissent’s AEDPA-based critique tees up potential en banc or Supreme Court review. If review is sought, we can expect argument over whether “indictment dismissal” in the Supreme Court’s speedy trial cases necessarily resolves the multi-count partial-violation scenario.

Complex Concepts Simplified

What is the Barker Test?

Courts evaluate speedy trial claims by balancing four factors:

Length of delay: Is the delay long enough to be presumptively prejudicial?
Reason for delay: Who caused the delay and why (e.g., negligence, deliberate delay, valid reasons like illness)?
Assertion of the right: Did the defendant consistently demand a speedy trial?
Prejudice: Has the delay harmed the defendant? Courts look at oppressive pretrial incarceration, anxiety, and—most importantly—whether the defense was impaired (e.g., witnesses died, memories faded, evidence lost).

Barker requires a practical, case-specific weighing; no single factor is dispositive.

Why Is the Remedy So Severe?

The Supreme Court has explained that delayed trials can irreparably damage the accuracy and fairness of proceedings—lost witnesses and faded memories cannot be cured by a new trial or sentence credit. Because the harm is structural, the only remedy is to terminate the prosecution by dismissing the indictment.

What Does “Dismissal of the Indictment” Mean?

“Indictment” is the charging instrument and can include multiple counts. Under Barker/Strunk/Betterman, once a violation is found, the prosecution must be terminated—i.e., the entire indictment is dismissed. This operates, as a practical matter, like dismissal with prejudice for the affected prosecution.

What Is AEDPA “Clearly Established Law”?

On federal habeas review of state convictions, relief is available only if the state court’s decision is “contrary to” or an “unreasonable application” of “clearly established Federal law” as determined by the U.S. Supreme Court.
“Clearly established” means holdings, not dicta, at the time of the state court decision. General standards afford states more leeway; specific rules afford less. A state court unreasonably applies federal law when its application is beyond the bounds of “fairminded disagreement.”

Other Terms

Certificate of Appealability (COA): A threshold determination allowing an appeal in a habeas case on specified issues.
Nunc pro tunc: “Now for then”—an order entered now that is treated as if it had been entered earlier, typically to correct the record.
Violent habitual offender: A status triggering enhanced penalties (often life without parole) based on prior qualifying convictions, under state law.

Key Takeaways

If any count in a multi-count indictment suffers a Sixth Amendment speedy trial violation, the only constitutionally permissible remedy is dismissal of the entire indictment; courts may not dismiss “count-by-count.”
Under AEDPA, the Fifth Circuit treated Barker/Strunk’s remedy as a specific rule leaving no room for fairminded disagreement—even in multi-count contexts.
The decision will influence charging decisions, severance practices, and docket management across the Fifth Circuit’s states.
The dissent’s AEDPA-focused critique highlights a potential split of views on whether Supreme Court precedent “clearly establishes” the global remedy in multi-count cases.

Unresolved Questions and Practice Notes

Separate indictments: If prosecutors file separate indictments for related offenses, does a violation on one case compel dismissal of the others? The logic of “termination of the prosecution” suggests the remedy tracks the charging instrument at issue, but future cases may explore how consolidated cases or closely related prosecutions interact with Barker.
Severance: Where severance occurs before a violation is found, does a later violation in one severed case require dismissal of other severed cases? Expect litigation over timing and the good-faith basis for severance.
Scope of prejudice analysis: The Fifth Circuit left intact the possibility that prejudice under Barker can be assessed count-by-count. But once any count crosses the violation line, the remedy is global.
Reprosecution: Because the remedy is termination of the prosecution, reprosecution for the same offense(s) is effectively barred after a constitutional speedy trial dismissal.

Conclusion

Berryman v. Huffman crystallizes a consequential remedial rule: when a speedy trial violation is found, the Constitution permits only one response—dismissal of the indictment. The Fifth Circuit’s decision emphatically rejects a count-by-count approach to remedies in multi-count indictments, harmonizing Barker, Strunk, Betterman, and Loud Hawk’s consistent references to termination of the prosecution or dismissal of the indictment.

Beyond its immediate effect—vacating Berryman’s conviction and directing dismissal of the indictment—the opinion will reshape litigation and docket management in the Fifth Circuit. Prosecutors will recalibrate charging and severance strategies; defense counsel will litigate speedy-trial claims with renewed vigor knowing that a violation on any count collapses the case; and trial courts will be on heightened alert to prevent administrative or systemic delays. The dissent’s robust AEDPA critique underscores that the Supreme Court may yet be invited to speak directly to multi-count remedies. For now, within the Fifth Circuit, there is no count-by-count cure for a Barker violation: the whole indictment must fall.