Beckwith v. Anderson (89 F. Supp. 2d 788, 2000)

United States District Court for the Southern District of Mississippi 2000-02-24

Citations

Full opinion text

OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on Petition Under Title 28 U.S.C. § 2254 for Writ of Habeas Corpus by Petitioner Byron De La Beckwith, who is in state court custody under a sentence of life imprisonment. Having considered the Petition, Answer, all attachments to each, and supporting and opposing authority, the Court finds that the Petition for Habeas Corpus Relief is not well taken and should be denied.

In the Petition for Writ of Habeas Corpus Relief, Beckwith requested the Court to conduct an evidentiary hearing, and requested authorization to conduct additional discovery. In a letter to the Court dated December 7, 1999, counsel for Beckwith withdrew these requests. Therefore, the request for an evidentiary hearing and the request for additional discovery are denied as moot.

I. Factual Background and Procedural History

This Petition for Habeas Corpus Relief (hereinafter “Petition”) arises out of the conviction and subsequent life sentence of Petitioner Byron De La Beckwith for the murder of civil rights leader Medgar Ev-ers. Evers was the first Field Secretary for the National Association for the Advancement of Colored People in the State of Mississippi. Evers was murdered at his home in Jackson, Mississippi on June 12, 1963. Beckwith, a self-avowed white supremacist and pro-segregationist, was arrested and charged with the murder of Evers on June 23, 1963. The Hinds County grand jury indicted Beckwith with Ev-ers’ murder during its July, 1963, term.

In 1964, Beckwith stood trial for the murder of Evers on two occasions. The first trial took place in February, 1964, and the second trial occurred in April, 1964. Because of hung juries, both trials resulted in mistrials. Following the second trial, Beckwith was released on $10,000.00 bond. On March 10, 1969, the district attorney in charge of Beckwith’s case moved the court to enter a nolle prosequi of the indictment. On the same day, the three circuit judges of the Seventh Circuit Court District signed and entered an order granting a nolle prosequi. No objection was raised by the defense to entry of the nolle prosequi. Some time after his release from custody, Beckwith moved from Mississippi to Tennessee.

Although the murder of Medgar Evers received considerable attention over the years, no effort was made by the State of Mississippi to re-initiate criminal proceedings against Beckwith until 1990. During the December, 1990, term of the Hinds County grand jury, Beckwith was again indicted for the murder of Evers. Following an extradition contest in the Tennessee court system, Beckwith was extradited to Mississippi. Beckwith’s request for bail was denied. The circuit court’s denial of bail was affirmed by the Mississippi Supreme Court on March 25,1992.

In April, 1992, Beckwith moved the circuit court for dismissal of the indictment. The motion for dismissal cited three constitutional grounds, namely (1) denial of the right to a speedy trial, (2) denial of due process rights, and (3) double jeopardy. Beckwith’s motion for dismissal was denied on August 4, 1992. Beckwith then petitioned the Mississippi Supreme Court for an interlocutory appeal, which was granted on August 26, 1992. Beckwith v. State, 615 So.2d 1134 (Miss.1992), cert. denied, 510 U.S. 884, 114 S.Ct. 232, 126 L.Ed.2d 187 (1993) (hereinafter “Beckwith /”). In Beckwith I, the court dismissed without prejudice Beckwith’s interlocutory appeal as to his speedy trial and due process claims, holding essentially that those claims were premature but could be raised again on appeal in the event of Beckwith’s conviction. Additionally, the Mississippi Supreme Court affirmed the circuit court’s denial of Beckwith’s double jeopardy claim. The case proceeded to jury trial in 1994, resulting in Beckwith’s conviction for the murder of Evers. Beckwith was sentenced to life imprisonment.

Feeling aggrieved by the jury’s verdict, Beckwith again appealed to the Mississippi Supreme Court. Byron De La Beckwith, VI v. State, 707 So.2d 547 (Miss.1997), cert. denied, 525 U.S. 880, 119 S.Ct. 187, 142 L.Ed.2d 153 (1998) (hereinafter “Beckwith II”). Affirming the trial court’s verdict, the Mississippi Supreme Court held:

1) Beckwith’s due process rights were not violated by the 26 year delay between the second mistrial in 1964 and the second indictment in 1990;

2) Racist letters indicating Beckwith’s involvement in the Ku Klux Klan were relevant to establish motive;

3) The circuit court’s refusal to allow trial testimony from the second 1964 trial to be read into evidence during the 1994 trial did not constitute error;

4) Impeachment of witnesses through use of grand jury testimony did not constitute error;

5) Admission of photographs of Evers’ body in its casket did not constitute undue prejudice; and

6) Transfer of venue for jury selection based on racial demographics did not violate Beckwith’s right to an impartial jury or right to equal protection.

See Beckwith II, 707 So.2d 547 (Miss.1997).

Having exhausted all state court remedies, Beckwith petitioned this Court for habeas corpus relief. The Petition, which seeks relief from Beckwith’s conviction and life sentence, was filed on June 15, 1999. The following three grounds for habeas corpus relief are stated in the Petition. The grounds are:

1)Violation of Beckwith’s Sixth Amendment right under the United States Constitution to a speedy trial caused by the 26 year delay which began in 1964 and ended with Beckwith’s re-indictment in 1990;

2) Violation of Beckwith’s Fifth Amendment due process right under the United States Constitution to a speedy trial because the State waited 26 years to put him to trial. The 26 year delay allegedly crippled Beck-with’s defense due to the deaths of witnesses, Beckwith’s loss of memory and the loss of evidence; and

3) Violation of Beckwith’s right to a fair trial and right to due process under the Fifth Amendment, and violation of Beckwith’s compulsory process rights under the Sixth Amendment to the United States Constitution. These constitutional claims arise from alleged discovery violations relating to five witnesses who either testified in Beckwith’s 1994 trial, or were prohibited from testifying by the trial court.

II. Analysis

A. Applicable Law / Standard of Review

Beckwith brings this Petition under 28 U.S.C. § 2254, which states in relevant part:

(a) [A] district court shall entertain an application for a writ of habeas corpus ... pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(d) An application for a writ of habeas corpus ... pursuant to the judgment of a State court shall not be granted with respect to -any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus ... pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C.A. § 2254.

The Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], Pub.L. 104-132, 110 Stat. 12144, amended 28 U.S.C. § 2254 to include the contents § 2254(d). AEDPA became effective on April 26, 1996, the date on which President Clinton signed the act. Under AEDPA, pure questions of law and mixed questions of law and fact are reviewed under subsection (d)(1), whereas questions of fact are reviewed under subsection (d)(2). Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.1998) (citing Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), implicitly overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). When reviewing a purely legal question, a federal court may grant habeas relief “only if it determines that a state court’s decision rested on a legal determination that was ‘contrary to ... clearly established federal law as determined by the Supreme Court.’ ” Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.1997), cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1019 (1997) (citing Drinkard, 97 F.3d at 768, implicitly overruled on other grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481)).

“Under the AEDPA deference scheme, a federal court will not disturb a state court’s application of law to facts unless the state court’s conclusions involved an ‘unreasonable application’ of clearly established federal law as established by the Supreme Court.” Davis v. Johnson, 158 F.3d 806, 812 (5th Cir.1998) (citing 28 U.S.C. § 2254(d)(1)) (other citations omitted). For a state court’s application of federal law to be “unreasonable,” it must be “so clearly incorrect that it would not be debatable among reasonable jurists.” Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir.1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (citing Drinkard, 97 F.3d at 769, implicitly overruled on other grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481)). In other words, “an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect.” Drinkard, 97 F.3d at 769, implicitly overruled on other grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3d at 812 (citations omitted); Corwin, 150 F.3d at 471-72 (citation omitted). Unless rebutted by clear and convincing evidence, state court factual findings are presumed to be correct. Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir.1998), cert. denied, 526 U.S. 1041, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999) (citing 28 U.S.C. § 2254(e)(1)).

Each of Beckwith’s three grounds for habeas corpus relief is analyzed under the constraints of 28 U.S.C. § 2254 and case law interpretations of the applicable provisions of § 2254.

Beckwith’s three grounds for habeas relief, 1) Sixth Amendment right to a speedy trial, 2) Fifth Amendment due process right to a speedy trial and 3) Fifth Amendment due process right to a fair trial and Sixth Amendment right to compulsory process, are all mixed questions of law and fact. Therefore, the Court analyzes these issue under the standards of 28 U.S.C. § 2254(d)(1). In Beckwith II, the Mississippi Supreme Court rejected all of Beck-with’s Constitutional claims, affirming his conviction and sentence. Beckwith II, 707 So.2d at 604 This Court must uphold the decision of the Mississippi Supreme Court unless it is found to be so clearly incorrect that reasonable jurists could not disagree that the decision was erroneous. See Nobles, 127 F.3d at 418 (citation omitted).

B. Beckwith’s Sixth Amendment Right to a Speedy Trial

(1) Time Period Over Which Beck-with’s Right to a Speedy Trial Extends

As a preliminary issue, the Court must determine the time period over which Beckwith’s Sixth Amendment protection extends. The Commissioner of the Mississippi Department of Corrections and the Mississippi Attorney General [hereinafter “Respondents”] contend that the protection extends from the time of Beckwith’s second mistrial on April 17, 1964, through entry of the nolle prosequi on March 10, 1969, a period of almost five years (1,787 days). Beckwith contends that his Sixth Amendment speedy trial protection extends from the second mistrial on April 17, 1964, until the prosecution re-indicted him in December, 1990, a period of over twenty-six years.

The general rule regarding the time period utilized in calculating speedy trial violations was set forth by the United States Supreme Court in United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). The Court held that the Sixth Amendment does not protect a defendant from all effects flowing from pre-trial delays. Id. at 311, 106 S.Ct. at 654. “[W]hen no indictment is outstanding, only the ‘actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision on the Sixth Amendment.’ ” Id. at 310, 106 S.Ct. at 653 (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971)); see also, United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Under the general rule set forth in Loud Hawk, the Sixth Amendment speedy trial right applies only to time periods when a person is either under indictment or under arrest.

The United States Supreme Court discussed the intent behind the speedy trial clause of the Sixth Amendment in United States v. MacDonald. In MacDonald, the Court held:

The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time.... The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502. The holding in MacDonald supports the general rule set forth in Loud Hawk.

The decision in United States v. Avalos, 541 F.2d 1100 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977), represents an exception to the general rule set forth in Loud Hawk. Beckwith asserts that Avalso is controlling under the circumstances of his case. In Avalos, the defendants were originally arrested in Washington, D.C. Id. at 1108-09. After the defendants were arrested in Washington, the warrants were dismissed before the case proceeded to trial. Id. at 1109 n. 13. However, after dismissal of the District of Columbia arrest warrants, the defendants were arrested and tried for the same crimes in Florida. Id. at 1108-09. In granting defendants motion to dismiss for lack of a speedy trial, the trial court held that the government was forum shopping. Id. at 1105. Analyzing the point in time at which the right to a speedy trial attaches, the court held that the basis for the arrest is critical. Id. at 1109 (citation omitted). “[T]he arrest warrants were dismissed [in Washington, D.C.] not because of unrelated charges pending in another court, but in order to prosecute the same charges in another court.” Id. at 1109 n. 13. Under this fact scenario, the court held that the right to a speedy trial attached at the time of the original arrest in Washington, D.C. Id. at 1109.

The holding in Avalos is an exception to the general rule set forth in Loud Hawk. However, Avalos applies only under similar factual circumstances. The case sub judice does not present a fact scenario similar to the facts in Avalos. Beckwith’s indictment was not dismissed in 1969 in order to resume the prosecution in another jurisdiction, and thus did not constitute “forum shopping” as in Avalos. Therefore, the general rule set forth in Loud Hawk, that Sixth Amendment speedy trial protection extends only to time periods when the defendant is under indictment or under arrest, applies to Beckwith’s case. The time period in which Beckwith was either under indictment or under arrest covers April 17,1964, through March 10, 1969. Consequently, this Court finds that the time period over which Beckwith’s right to a speedy trial under the Sixth Amendment extends is from the time of his second mistrial on April 17, 1964, through entry of the nolle prosequi on March 10,1969.

(2) Analysis: Beckwith’s Sixth Amendment Speedy Trial Right

At issue is whether the delay of almost five years (1,787 days) from Beckwith’s second mistrial on April 17, 1964, until the date that the indictment was dismissed on March 10, 1969, constitutes an unreasonable delay in violation of Beckwith’s Sixth Amendment right to a speedy trial. The Sixth Amendment to the United States Constitution guarantees all criminal defendants the right to a speedy trial. In Beck-ivith II, the Mississippi Supreme Court held that Beckwith’s Sixth Amendment right was not violated by the delay. Beckwith II, 707 So.2d at 604. Because the issue was decided on the merits by the Mississippi Supreme Court, this Court will not disturb the ruling unless “reasonable jurists considering the question would be of one view that the state court ruling was incorrect.” See Drinkard, 97 F.3d at 769, implicitly overruled on other grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3d at 812 (citations omitted); Corwin, 150 F.3d at 471-72 (citation omitted).

A brief factual foundation is repeated for a clear understanding of this issue. Beck-with was initially arrested for the murder of Medgar Evers on June 23, 1963. He was tried for Evers’ murder on two occasions in 1964. Both trials ended in mistrial, the first on February 7, 1964, and the second on April 17, 1964. Beckwith was released on $10,000.00 bond after the second mistrial. The charges against Beck-with were dismissed on March 10, 1969, by the entry of the nolle prosequi by the State.

Analysis of whether Beckwith’s Sixth Amendment right to a speedy trial was violated requires application of a four factor balancing test described by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972). The United States Court of Appeals for the Fifth Circuit succinctly summarized the Barker factors as follows: “(1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right, and (4) the prejudice to the defendant.” Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir.1993), cert. denied, 510 U.S. 1167, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994) (citation omitted). The Court will both independently analyze each Barker factor and consider whether the Mississippi Supreme Court analyzed the factors in a reasonable manner.

(a) length of delay

This “length of delay” test serves not only as the initial Barker factor, but also as a triggering mechanism for the remaining three Barker tests. Id. (citation omitted). In other words, if the length of delay reaches a threshold level at which it is regarded as “presumptively prejudicial,” then findings must be made on the remaining three factors. Id. at 568. A delay of one year or more is sufficient to trigger a Sixth Amendment speedy trial analysis. Id.

In the case sub judice, almost five years elapsed between the date of Beck-with’s second mistrial on April 17, 1964, and entry of the nolle prosequi on March 10, 1969. In Beckwith II, the Mississippi Supreme Court correctly held that the delay was presumptively prejudicial, requiring analysis and balancing of the four Barker factors. See Beckwith II, 707 So.2d at 566.

(b) reason for the delay

In Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.1994), cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994), the Fifth Circuit considered issues that must be analyzed under the “reason for delay” Barker factor. The court held:

A deliberate and intentional delay by the prosecution for the purpose of hindering the defense or otherwise gaining a tactical advantage is weighed heavily against the state. An unintentional and inadvertent delay, however, is weighed much less heavily. Where the state advances valid reasons for the delay, or the delay is attributable to acts of the defendant, this factor is weighed in favor of the state.

Id. at 647 (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2192. The Mississippi Supreme Court held that Beckwith was responsible for delay in question. Beckwith II, 707 So.2d at 566-67. Under the deference standard of AEDPA, this Court will not disturb the state court finding unless it is an unreasonable application of law to the facts. Davis, 158 F.3d at 812 (citing 28 U.S.C. § 2254(d)(1)) (other citations omitted).

Holding that the “reason for delay” factor weighed against Beckwith, the Mississippi Supreme Court relied on two bodies of evidence. Beckwith II, 707 So.2d at 567. First, the court relied on a newspaper article published in the December 18, 1990, issue of the Clarion Ledger, the primary newspaper publication in Jackson, Mississippi. Id. The article was presented to the trial court by Beckwith’s counsel. Id. Quoting District Attorney Ed Peters, the article states:

Peters said he had been skeptical of the chances of a new prosecution in the Ev-ers case. “The question of a new trial had been raised before, including at the 20th anniversary of Evers’ death,” Peters said. “It had always been my belief that the law would bar prosecution of this case, and I had always proceeded on this theory.” Peters said .... “Until the Sovereignty Commission files, I never got past speedy trial, prior jeopardy, missing witnesses, missing evidence, dismissal of the indictment, mistrials. There were just too many things standing in the way, ” Peters said. The jury tampering question raised by the Sovereignty Commission records made Peters look at the case again. “I don’t think what they did was morally right, but it wasn’t legally wrong,” Peters said of a Sovereignty Commission investigator’s attempts to gather evidence about potential jurors. The Jurors themselves were not contacted before the trial. “Once the jury tampering investigation was opened, [Assistant District Attorney Bobby] DeLaughter expressed the opinion that it possibly would be tryable. I got him to look into it. He and two of our .investigators have spent just untold days on putting the pieces back together,” Peters said. “I would call it more of an evolution into the prosecution than just a headlong leap into, ‘This is justice.’ ” Peters said.

Id. at 567 (emphasis added). Based on this newspaper article and files from the now defunct Mississippi State Sovereignty Commission (hereinafter “Sovereignty Commission”), a state agency, the Mississippi Supreme Court concluded that the Sovereignty Commission, unbeknownst to the prosecution at the time, aided Beck-with’s defense during the two trials in 1964. Id. at 567.

The second evidentiary factor relied upon by the Mississippi Supreme Court in holding that Beckwith caused the delay at issue was a statement made by Beckwith himself. Id. Mark Reiley was a witness for the State at trial. Id. In a conversation between Reiley and Beckwith, Beck-with stated “that he had ‘the power and connections’ in Mississippi to avoid incarceration for ‘getting rid of that nigger, Medgar Evers.’ ” Id. The Mississippi Supreme Court construed Beckwith’s statements as “admitted complicity in thwarting the aims of fair and impartial justice.” Id. Therefore, the “reason for delay” factor was weighed against Beckwith. Id.

A central issue in Beckwith’s argument that the “reason for delay” factor weighs in his favor revolves around the question of which party bears the burden of proving the reason for trial delay. Beckwith alleges that Respondents must provide sufficient reasons for the. delay, otherwise the Court is required to weigh this factor in his favor. Beckwith further alleges that Respondents have not met their burden of proof. In support of this proposition, Beckwith cites United States v. Rogers, 781 F.Supp. 1181 (S.D.Miss.1991). In Rogers, the court assigned the burden of justifying the delay to the government because “the government was clearly responsible for the .'.. delay.” Id. at 1186. In contrast, the Mississippi Supreme Court in Beckwith II concluded that Beckwith was responsible for the delay. Beckwith II, 707 So.2d at 567. This Court acknowledges that it would have preferred for the Mississippi Supreme Court to have given more extensive reasoning for its decision. However, the deference scheme of § 2254(d) requires only that the decision of the state court is a reasonable application of law to the facts. The Mississippi Supreme Court provided two independent fact based reasons for its finding that Beckwith was responsible for the delay. The reasons include the Clarion Ledger newspaper article referring to the Sovereignty Commission’s involvement in the 1964 trials, and incriminating statements made by Beckwith himself. The findings of the state court, although brief, do meet the “reasonableness” standard of § 2254(d). Therefore, because Beckwith was responsible for the trial delay, the holding in Rogers does not apply to the case sub judiee.

Beckwith further relies on a series of Mississippi state court cases to support his argument that Respondents carry the burden of proving that Beckwith caused the trial delay. See Jenkins v. State, 607 So.2d 1137 (Miss.1992); State v. Ferguson, 576 So.2d 1252 (Miss.1991); Beavers v. State, 498 So.2d 788 (Miss.1986). However, in supporting a Sixth Amendment speedy trial claim under § 2254, reliance on state court case law is misguided. Section 2254 states that a writ of habeas corpus will not be granted unless the underlying state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law....” 28 U.S.C. § 2254(d)(1) (emphasis added). Based on the foregoing findings, Beck-with’s argument that Respondents have failed to meet their burden of proof is not well taken.

Beckwith presents three additional arguments supporting his proposition that the “reason for delay” factor of the Barker analysis favors him. First, the FBI and local prosecutors had a close working relationship. Because of this close working relationship, Beckwith reasons that a third trial should have taken place before entry of the nolle prosequi in 1969. Second, Beckwith contends that neither he nor his counsel caused the delay. Third, after Peters assumed the district attorney position in 1972, he acknowledged that the prosecution was discussed several times. Therefore, Beckwith alleges that the third trial should have occurred at a substantially earlier date.

As to Beckwith’s first two arguments, the Mississippi Supreme Court found that because of interference by both the Sovereignty Commission and Beckwith himself, efforts to retry Beckwith were thwarted. Neither a close working relationship between state and federal agencies nor self-serving statements by Beckwith and his attorney provide sufficient reasoning under the deference standard of AEDPA for this Court to disturb the state court finding. The third argument concerning statements made by District Attorney Peters is of no consequence because of the timing of the statement. The time frame covered by this Court’s Sixth Amendment speedy trial analysis is from 1964 through 1969. Peters did not take office until 1972, outside of the time frame in question. For these reasons, the final three arguments made by Beckwith do not persuade the Court that the “reason for delay” Barker factor should be weighed in his favor.

The Mississippi Supreme Court found that the “reason for delay” Barker factor favored the State. This Court finds that the state court ruling was a reasonable application of federal law to the available facts. Therefore, under the deference standard of AEDPA, the state court ruling will not be disturbed.

(c) assertion of the right

The third factor considered by the Court is whether Beckwith asserted his right to a speedy trial. Prior to the Barker decision, most states recognized the “demand rule.” Barker, 407 U.S. at 524, 92 S.Ct. at 2188. Under the “demand rule,” a defendant waives his Fifth Amendment right to a speedy trial during any period that no demand for trial is made. Id. at 525, 92 S.Ct. at 2189. In Barker, the United States Supreme Court rejected the “demand rule.” Id. at 528, 92 S.Ct. at 2191. The Court held:

We reject ... the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.

Barker, 407 U.S. at 528, 92 S.Ct. at 2191 (internal footnote omitted). The Court noted that failure to assert the right to a speedy trial complicates the determination of whether the right was violated. Id. at 532, 92 S.Ct. at 2193. However, “courts should ‘indulge every reasonable presumption against waiver’ ” of the right to a speedy trial. Id. at 525, 92 S.Ct. at 2189 (citation omitted).

Weighing this factor against Beckwith, the Mississippi Supreme Court in Beck-with II stated:

There was no assertion of the speedy trial right. Beckwith argues that several newspaper clippings and one document opposing a mental evaluation establish proof that he asserted his right to a speedy trial. All of these clippings, and the document in question, concern the time period prior to Beckwith’s earlier trials. No proof of any sort suggests that Beckwith requested or wanted a third trial.

Beckwith II, 707 So.2d at 567. This Court agrees with the holding of the Mississippi Supreme Court.

Beckwith cites eight sources which allegedly indicate that he requested a speedy trial. The first source is the Response of Defendant to the Suggestion of Insanity and Motion for Mental Examination of the Defendant, which was filed in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on July 13, 1963. See Petition for Writ of Habeas Corpus, Exhibit “Y.” This Motion was filed in relation to Beckwith’s first murder trial. Arguing against ■ the Motion for Mental Examination, Beckwith’s counsel stated “that among his constitutional rights which will be violated by such an examination ... are his right to a speedy trial.” Id.

The second through fifth sources that Beckwith cites supporting his allegation that a speedy triál request was made are newspaper articles published in either the Commercial Appeal in Memphis, Tennessee, or the Jackson Daily News in Jackson, Mississippi. See Petition for Writ of Ha-beas Corpus, Exhibit “Z,” Exhibit “AA,” Exhibit “BB,” and Exhibit “CC.” The publication dates of the articles range from August 9, 1963, through November 20, 1963. Id. All of the articles refer to Beck-with’s speedy trial rights. However, all of the articles relate to Beckwith’s initial murder trial. Id. None refer to the possibility of a third trial subsequent to the two mistrials in 1964.

Both Beckwith’s Response to the Motion for Mental Examination and all of the referenced newspaper articles concern Beckwith’s request for a speedy trial prior to the first two mistrials in 1964. No evidence is presented in any of those sources indicating that Beckwith sought a speedy trial between the time of the second mistrial in 1964, and the time of entry of the nolle prosequi in 1969. Because the time frame at issue in this Petition for Habeas Corpus Relief begins at the date of the second mistrial in April, 1964, none of Beckwith’s first five sources support his proposition that he requested a speedy trial prior to entry of the nolle prosequi in 1969.

The sixth source relied on by Beckwith is a quote from the hearing in which counsel for Beckwith argued for dismissal of the 1990 re-indictment. See Petition for Writ of Habeas Corpus, Exhibit “K,” Transcript, Denial of Motion to Dismiss Indictment. During the hearing, Beckwith stated that he was “available” for trial from the time of the second mistrial in 1964, through entry of the nolle prosequi in 1969. Id. at 21-22. Additionally, Beck-with alleges that during that time frame, he asked his attorneys to seek a third trial or to take steps to “[t]hrow the thing out ... the best way you can_” Id. at 70-74. There is no evidence that his attorneys did anything to try to accomplish Beckwith’s stated objective.

The seventh source cited in support of Beckwith’s claim that a speedy trial was requested is a sworn affidavit by Beckwith. In the affidavit, Beckwith stated that both he and his lawyers were prepared and available for a third trial. See Petition for Writ of Habeas Corpus, Exhibit “Q,” Affidavit of Byron De La Beckwith. The eighth and final source relied upon by Beckwith is the affidavit of Hardy Lott. See Petition for Writ of Habeas Corpus, Exhibit “O,” Affidavit of Hardy Lott. Lott was one of the attorneys who represented Beckwith at the 1964 murder trials. Id. Referring to the time frame from the second mistrial in 1964, through entry of the nolle prosequi in 1969, Lott stated “[d]ur-ing that time I did nothing on Beckwith’s behalf to delay or prevent a third trial of the murder case, but was expecting that a third trial would occur and remained ready for trial.” Id.

The sixth through eighth sources relied upon by Beckwith in support of his allegation that a speedy trial was requested are not well taken. All of these sources indicate that Beckwith and his attorneys were ready for trial during the 1964 through 1969 time frame, but none prove that either Beckwith or his attorneys requested a third trial. Being prepared for trial does not meet the requirement of requesting a trial. Therefore, these sources of information cannot support Beckwith’s claim that his Sixth Amendment right to a speedy trial was violated.

Beckwith has presented no evidence indicating that he requested a trial from the time of the second mistrial in 1964, through entry of the nolle prosequi in 1969. For this reason, the Court will not disturb the finding of the Mississippi Supreme Court that Beckwith failed to request a third trial. The third Barker factor weighs in favor of Respondents.

(d) prejudice to the defendant

The fourth and final Barker factor requires the Court to consider whether a delay in bringing Beckwith to trial prejudiced Beckwith’s defense in any way. Analyzing this factor, the Mississippi Supreme Court in Beckmth II recognized that “when the length of delay is presumptively prejudicial, the burden of persuasion is on the state to show that the delay did not prejudice the defendant.” Beckwith II, 707 So.2d at 567. However, the defendant must show that the delay actually prejudiced his defense in some manner. Id. Otherwise, this prong of the Barker test must be weighed against the defendant. Id. Refusing to weigh this factor against the State, the Mississippi Supreme Court concluded that Beckwith presented no evidence supporting his allegation of prejudice. Id. at 568. In fact, during the five year period in question, the court found that all material evidence was preserved. Id. This Court agrees with the findings of the Mississippi Supreme Court.

Concerning possible prejudice to the defendant resulting from a trial delay, the United States Supreme Court has identified three interests to consider. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The interests are: “(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 first interest identified by Barker, prevention of oppressive pretrial incarceration, does not apply to the case sub judi-ce. Beckwith was released on bail after the second mistrial in April, 1964. He remained free on bail until the indictment was dismissed via a nolle prosequi in March, 1969. Therefore, the first interest weighs in favor of neither Beckwith nor the Respondents.

Beckwith argues that the second interest identified in Barker, minimization of anxiety and concern over a pending trial, should be weighed in his favor. During arguments before the Hinds County Circuit Court concerning Beckwith’s motion to dismiss the 1990 re-indictment, Beck-with was asked “how did the fact that this matter was hanging over your head affect you, Mr. Beckwith?” See Petition for Writ of Habeas Corpus, Exhibit “K,” Transcript, Denial of Motion to Dismiss Indictment, p. 22. Beckwith answered “it affected me in every way that carrying a burden of murder unjustly on a man’s shoulders and his family had to carry all that, too, so it was double, triple and quadruple burden ....” Id. Beckwith further alleged that he and his Mends were under a financial burden due to the alleged unjust murder indictment. Id. at 36.

The United States Court of Appeals for the Fifth Circuit analyzed the level of anxiety necessary to trigger an effective prejudice claim by a defendant. Cowart, 16 F.3d at 647. “Anxiety about one’s reputation and private life during pretrial delay ... will not alone suffice to warrant a reversal of a conviction.” Id. (citation omitted). Furthermore, “[ajnxiety of the sort ‘present to some degree in virtually every case’ does not amount to actual prejudice.” Avalos, 541 F-2d at 1115 (citations omitted). Applying these standards to Beckwith’s Petition for Habeas Corpus Relief, this Court finds that the level of anxiety suffered by Beckwith does not rise to the level of prejudice. Anxiety about one’s personal and/or family life is inadequate to trigger a finding of prejudice. Also, financial strains imposed by a criminal prosecution are of the type of anxiety suffered to some degree in all cases. Therefore, the second interest set forth in Barker does not weigh in favor of Beckwith.

The third interest set forth in Barker is an interest in limiting the possibility that the defense will be impaired. Of the three interests, this is the most important. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Fairness of the criminal justice system hinges upon this interest. Doggett v. United States, 505 U.S. 647, 654, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520 (1992) (citation omitted).

The concern of this Court in determining whether Beckwith’s defense was impaired relates to proof of impairment caused by the delay. “[Affirmative proof of particularized prejudice is not essential to every speedy trial claim[,]” because “time’s erosion of exculpatory evidence and testimony ‘can rarely be shown.’ ” Id. at 655, 112 S.Ct. at 2692-93 (citations omitted). Citing Doggett, the Fifth Circuit summarized three situations in which a criminal defendant must show varying degrees of prejudice. Robinson, 2 F.3d at 570 (citing Doggett, 505 U.S. at 656-57, 112 S.Ct. at 2693). The degree of proof that a defendant must provide in each of the three situations varies inversely with the amount of fault assigned to the government for the delay. Robinson, 2 F.3d at 570 (citation omitted). In the first situation, if the government was reasonably diligent in bringing the defendant to trial, then the defendant must show “specific prejudice to his defense.” Id. (citation omitted). At the opposite end of the spectrum, if the government inexcusably caused the delay, then the delay presents “an overwhelming case for dismissal.” Id. (citation omitted). The middle ground is referred to as “official negligence.” Id. (citation omitted). If the government’s conduct falls into neither of the aforementioned categories, then the court must “determine what portion of the delay is attributable to the Government’s negligence and whether this negligent delay is of such a duration that prejudice to the defendant should be presumed.” Id. at 570 (citation omitted).

With these tests in mind, this Court considers whether Beckwith was prejudiced by the delay beginning with his second mistrial in April, 1964, and ending with entry of the nolle prosequi in March, 1969. As analyzed above, this Court concluded that Beckwith himself was responsible for the delay. See supra, section II.B.(2)(b) of this Opinion and Order. Therefore, under the standards set forth in Robinson, Beckwith must come forward with specific prejudice to his defense.

Beckwith recites twenty-four elements in support of his allegation of prejudice caused by the delay. See Memorandum Brief in Support of Petitioner Byron De La Beckwith, Vi’s Petition for Habeas Corpus, pp. 28-30. Of the twenty-four elements cited by Beckwith, only one falls within the time frame between 1964 and 1969. All other elements concern prejudice to Beckwith at his third trial in 1994. As found by this Court above, the time frame covered by Beckwith’s Sixth Amendment right to a speedy trial is from the date of his second mistrial in April, 1994 through entry of the nolle prosequi in March, 1969. See supra, section II.B.(l) of this Opinion and Order. Therefore, only the one event which occurred between 1964 and 1969 is considered.

The only prejudicial occurrence cited by Beckwith between 1964 and 1969 was the death of Sam Warren, who was a defense witness in Beckwith’s second trial in 1964. See Memorandum Brief in Support of Petitioner Byron De La Beckwith, Vi’s Petition for Habeas Corpus, p. 24. At Beck-with’s first trial, prosecution witness Lee Swilley testified that he could positively identify Beckwith. Id. During Beckwith’s second trial, Warren impeached Swilley. Id. Warren testified that Swilley lied about his capability to identify Beckwith. Id. Warren died on November 14, 1968. Therefore he could not have testified had the State decided to proceed with a third trial between the date of his death in 1968, and the date of entry of the nolle prosequi in 1969.

This Court must determine whether the death of Warren prejudiced the defense of Beckwith. A diligent “search for prejudice” reveals none. Beckwith- was not retried in 1969; the charges against him were dismissed via a nolle prosequi. In Doggett, the Court stated that “excessive delay presumptively compromises the reliability of a trial ...” Doggett, 505 U.S. at 655, 112 S.Ct. at 2693 (emphasis added). Because no trial occurred during the time frame in question, Beckwith could not have been prejudiced by Warren’s death. There was no need for Warren’s testimony because no trial "took place; the charge against Beckwith was dismissed. For this reason, the third interest set forth in Barker cannot be weighed in favor of Beckwith.

As found by the Mississippi Supreme Court in Beckwith II, none of the three interests detailed in Barker support a showing of prejudice resulting from the delay beginning at Beckwith’s second mistrial in April, 1964, and ending when the indictment was dismissed in March, 1969. Therefore, the fourth and final Barker factor, prejudice to the defendant, is weighed in favor of the Respondents.

(3) Conclusion, Beckwith’s Sixth Amendment Speedy Trial Right

Finding that' Beckwith’s Sixth Amendment right to a speedy trial was not violated, the Mississippi State Supreme Court in Beckwith II held:

Our balancing of the Barker factors for this five-year period weighs in favor of the State. Even though the amount of time is counted against the State, the defendant’s complicity with the Sovereignty Commission’s involvement in the prior trials contributed to the delay; the defendant did not assert his right to a trial during this period; and no prejudice resulted from a nolle prosequi of all counts against Beckwith, since all material evidence had been preserved from prior proceedings.

Beckwith II, 707 So.2d at 568. Under the deference scheme of AEDPA, this Court will not disturb the ruling of the Mississippi Supreme Court unless the conclusions of the court involve an unreasonable application of clearly established federal law. See Davis, 158 F.3d at 812 (citations omitted). No unreasonable application of federal law is found in the decision of the Mississippi Supreme Court. Therefore, Beckwith’s prayer for habeas corpus relief based on his Sixth Amendment speedy trial right should be denied.

Although a finding that the holding of the state court was in accord with federal law is sufficient to comply with the deference standard of AEDPA, this Court analyzed the Barker factors independently. Based on this Court’s own analysis of the Barker factors, an independent conclusion is made that Beckwith’s Sixth Amendment right to a speedy trial was not violated. The Court particularly emphasizes Barker factor four, prejudice to the defendant. Beckwith was not retried in 1969; the indictment against him was dismissed. Because the charge against Beckwith was dismissed rather than retried, it is clear that Beckwith was not prejudiced. For this reason and all of the foregoing reasons, the Court finds that Beckwith’s Sixth Amendment speedy trial right was not violated. Habeas corpus relief cannot be granted based on the alleged violation of Beckwith’s Sixth Amendment right to a speedy trial.

A. Beckwith’s Fifth Amendment Due Process Right to a Speedy Trial

At issue is whether Beckwith’s Fifth Amendment due process right was violated by the delay in re-indicting him until 1990. A brief review of the facts is necessary for a clear understanding of this issue. Beck-with was tried for the murder of Evers on two occasions in 1964. Both trials ended in mistrial because of hung juries. In 1969, the indictment against Beckwith was dismissed upon entry of a nolle prosequi. In 1990, after the Sovereignty Commission files which revealed the Sovereignty Commission had assisted Beckwith with his jury selection were released to the public, the State re-indicted Beckwith for the murder of Evers. The State alleges that the re-indictment was based on new information contained in the Sovereignty Commission files. The new information allegedly indicated that both Beckwith and the Sovereignty Commission participated in obstructing the prosecution of Beckwith during the two trials in 1964. Beckwith was retried for Evers’ murder in 1994. The trial resulted in Beckwith’s conviction and a sentence of life imprisonment. Beckwith alleges that from the time of the second mistrial in 1964, until the re-indictment in 1990, defense witnesses died or became unavailable; witnesses, including Beckwith himself, lost their ability to remember key facts and events; and critical exculpatory evidence was lost. As a result, Beckwith further alleges that he was denied his Fifth Amendment due process right because of the pre-indictment delay.

The issue of whether Beckwith’s Fifth Amendment due process right was violated by the delay in his re-indictment was fully litigated before the Mississippi Supreme Court. Based on the deference scheme of AEDPA, this Court will not disturb the holding of the Mississippi Supreme Court unless “reasonable jurists considering the question would be of one view that the state court ruling was incorrect.” See Drinkard, 97 F.3d at 769, implicitly overruled on other grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3d at 812 (citations omitted); Corwin, 150 F.3d at 471-72 (citation omitted). Furthermore, unless the application of law to the facts by the Mississippi Supreme Court is an unreasonable application of federal law, the state court findings will not be overturned. See Davis, 158 F.3d at 812. Based on these standards, the Court considers applicable federal law regarding due process violations resulting from pre-indictment delay.

Potential prejudice to a defendant caused by pre-indictmént delay is analyzed under the due process clause of the Fifth Amendment to the United States Constitution. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994) (citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (other citations omitted). “[T]he Speedy Trial Clause [of the Sixth Amendment] has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501. Based on the holdings in Byrd and MacDonald, the Court analyzes the delay in re-indicting Beckwith under the due process clause of the Fifth Amendment.

With regard to pre-indictment delay, statutes of limitations provide a defendant’s primary protection and “the Due Process Clause has a limited role to play in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (citations omitted) (emphasis added). The Mississippi statute of limitations governing criminal charges does not impose a limitation period on the crime of murder. Miss.Code Ann. § 99-1-5 (1999). Therefore, Beckwith’s only protection against pre-indictment delay is the due process clause of the Fifth Amendment.

To successfully assert a Fifth Amendment due process violation for pre-indictment delay, the defendant must satisfy a two factor test. United States v. Willis, 583 F.2d 203, 207 (5th Cir.1978) (citations omitted). First, the defendant must show that the prosecuting authority intentionally delayed the indictment with the intent to gain a tactical advantage. United States v. Beszborn, 21 F.3d 62, 65-66 (5th Cir.1994) (citation omitted), cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994); Willis, 583 at 207 (citations omitted) Second, the defendant must prove actual prejudice resulting from the delay. Beszborn, 21 F.3d at 66 (citation' omitted); Willis, 583 F.2d at 207 (citations omitted). The burden of proving these two factors lies with the defendant. Willis, 583 F.2d at 207. “The court derived this two-pronged test from a construction of the Supreme Court’s holding in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).” Id. Following is an analysis of the two-pronged test as applied to Beckwith’s case.

(1) Factor # 1: Whether the State Intentionally Delayed the Re-indictment of Beckwith in Order to Gain a Tactical Advantage

Two distinctive sub-issues fall under this topic. The first is whether the State intentionally delayed Beckwith’s re-indictment to gain a tactical advantage. The second is whether Beckwith can claim a due process violation in the absence of proven intentional delay by the State. In other words, the Court must decide whether the two-prong test described above is an “and” test, requiring satisfaction of both the intentional delay element and the prejudice to the defendant element to successfully assert a due process violation, or whether the test is an “or” test, requiring a balancing of the two factors.

(a) Whether the State Intentionally Delayed the Re-indictment of Beckwith

“To prove that pre-indictment delay violated his due process rights, a defendant must demonstrate’ that the prosecutor intentionally delayed the indictment to gain a tactical advantage.... ” Byrd, 31 F.3d at 1339 (citations omitted) (emphasis added). The mere passage of time is insufficient to support a due process claim, even if the time lapse prejudiced the .defense. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.1991) (citations omitted), cert. denied, 502 U.S. 875, 112 S.Ct. 214, 116 L.Ed.2d 172 (1991). The United States Court of Appeals for the Eleventh Circuit correlates an “intentional delay” with a delay motivated by “bad faith.” See United States v. Foxman, 87 F.3d 1220, 1223 n. 2 (11th Cir.1996). The Eleventh Circuit defines a “bad faith” government motive as follows:

[T]he words “bad faith” ... mean that the government acted to delay an indictment, hoping that the delay — in and of itself — would prejudice the defense. In “bad faith” cases, the government intentionally acts to delay; and the tactical advantage sought is the prejudice to the defendant which the government anticipates will flow from the delay.

But, bad faith in this sense or in the sense of a subjective sinister motive is not critical to a due process violation for pre-indictment delay. The critical element is that the government makes a judgment about hoto it can best proceed with litigation to gain an advantage over the defendant and, as a result of that judgment, an indictment is delayed.

Id. (emphasis added). In the context of a due process violation resulting from pre-indictment delay, the Court adopts the definition of the Eleventh Circuit for the term “intentional delay.”

Analyzing the issue of whether the State intentionally delayed the re-indictment of Beckwith, the Mississippi Supreme Court in Beckwith II held:

The question of whether the State intentionally delayed re-indictment of Beck-with is ... answered by newspaper articles cited by Beckwith. In an August 17, 1987 article in The Clarion Ledger, District Attorney Ed Peters was quoted as follows: “There is no way under any stretch of the law that this case could be tried again. Anyone having the first class in law school ought to know that.” As is further clarified by Mr. Peters’ later statements in the previously mentioned December 18, 1990 article, the State never anticipated bringing new charges against Beckwith until the earlier involvement of the State Sovereignty Commission in Beckwith’s defense was discovered. These statements establish satisfactorily that the State never intentionally delayed prosecution to gain tactical advantage.

Beckwith II, 707 So.2d at 570. This Court agrees with the findings of the Mississippi Supreme Court. Nothing in the record indicates that the State of Mississippi intentionally delayed re-indictment of Beck-with until 1990 in order to gain a tactical advantage.

Supporting the proposition that the State intentionally delayed his re-indictment, Beckwith relies on a quote from the State’s brief filed with the Mississippi Supreme Court. See Memorandum Brief in Support of Petitioner Byron De La Beck-with, Vi’s Petition for Habeas Corpus, Exhibit “X.” Describing the reason for the delay in Beckwith’s re-indictment, the brief states “[t]he reason for the delay is simple; the district attorney had brought Beckwith to trial twice and, with the political and emotional climate of the time, was justified in assuming that a third trial, with an all-white jury, would reach the same conclusion.” Id. Beckwith argues that this quote provides proof that the State delayed re-indictment until a more favorable racial climate for prosecution developed. Beckwith’s argument is not well taken. The quote proves nothing more than the obvious; because of the racial climate in Mississippi in the 1960’s, a third prosecution of Beckwith would have been fruitless and a waste of state resources. Nothing in the quote proves that the State intended to re-indict Beckwith at a later date. To the contrary, statements made by the Mississippi District Attorney in 1987 indicate that Mississippi had no intention of re-indicting Beckwith in the mid-1980’s. The State did not re-indict Beckwith until 1990, after release of the Sovereignty Commission files revealed that Beckwith’s 1964 trial defenses were aided by the Sovereignty Commission. For these reasons, this Court finds that the State of Mississippi did not intentionally delay re-indictment of Beckwith in order to gain a tactical advantage.

(b) Whether Beckwith’s Due Process Claim is Viable in the Absence of Proof of an Intentional Delay by the State

This issue compels the Court to decide whether Beckwith can successfully assert a due process violation claim in the absence of proven intentional delay by the State. The question facing the Court is whether the two-prong test for a due process violation resulting from pre-indictment delay is an “and” test, or an “or” test. If the test is an'“and” test, then satisfaction of both the intentional delay element and .the prejudice to the defendant element is necessary to successfully assert a claim of due process violation. If the test is an “or” test, then both factors must be considered and balanced.

This issue was addressed by both the United States Supreme Court and the Fifth Circuit Court of Appeals. In Lovas-co, the United States Supreme Court held “Manon makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as prejudice to the accused.” Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49 (citing Marion, 404 U.S. at 324-25, 92 S.Ct. at 465). The holdings in Lovasco and Manon were analyzed by the Fifth Circuit in United States v. Crouch, 84 F.3d 1497 (5th Cir.1996), cert. denied, 519 U.S. 1076, 117 S.Ct. 736, 136 L.Ed.2d 676 (1997). Recognizing that neither Lovasco nor Marion are definitive on the issue of whether proof of both intentional delay by the government and prejudice to the' defendant are required for a successful due process claim, the Fifth Circuit in Crouch held “we believe that the better reading of these opinions is that the Supreme Court, in instances where the statute of limitations has not run, has refused to recognize a claim of pre-indictment delay absent some bad faith or improper purpose on the part of the prosecution.” Id. at 1510 (citation omitted). Crouch establishes the test in the Fifth Circuit: a Defendant must prove prejudice to his case resulting from pre-indictment delay and that the government intentionally delayed the indictment process to gain a tactical advantage. A majority of circuits follow the . same rule, including the District of Columbia Circuit, the First Circuit, the Second Circuit, the Third Circuit, the Sixth Circuit, the Seventh Circuit, the Tenth Circuit and the Eleventh Circuit. Id. at 1511-12 (citations omitted).

Based on the holdings in Lovasco, Marion and Crouch, this Court finds that Beckwith must prove not only prejudice to his defense but also that the government intentionally delayed his indictment in order to gain a tactical advantage. Because Beckwith failed to prove that the State intentionally delayed his re-indictment until 1990 to gain a tactical advantage, his Fifth Amendment due process claim fails. For this reason, the Court need not consider whether Beckwith’s defense was prejudiced by the pre-indictment delay. However, in the event that this Court is in error in regard to the indictment delay issue, the Court will, in the alternative, analyze whether the ruling of the Mississippi Supreme Court on the issue of prejudice was in accord with established federal law.

(2) Factor #2: Whether Beckwith Was Prejudiced by the Delay in His Re-indictment

The Fifth Circuit has set forth several guidelines to determine whether a defendant is prejudiced by a pre-indictment delay. The mere passage of time is insufficient to prove prejudice to the defendant. United States v. Butts, 524 F.2d 975, 977 (5th Cir.1975). To establish a due process claim based on pre-indictment delay, the defendant must prove actual prejudice; presumed prejudice is insufficient. Beszborn, 21 F.3d at 66. A due process claim is merely speculative without proof of actual prejudice. Id. “Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.” Id. at 67 (citations omitted). To support a due process claim through allegations of lost or unavailable witnesses, the defendant must show that “their testimony ‘would have actually aided the defense.’ ” Crouch, 84 F.3d at 1515 (citations omitted). Based on these guidelines, this Court will determine whether the holding of the Mississippi Supreme Court on the issue of prejudice to Beckwith’s defense was in accordance with federal law.

Holding that Beckwith did not prove prejudice to his defense resulting from the pre-indictment delay, the Mississippi Supreme Court in Beckwith II relied primarily on Beszbom. The court stated:

Beszborn had shown nothing that the deceased witnesses would say which would have affected the case, nor did he show anything that could be proved by any missing or misplaced documents. Beckwith is in the same position. Witnesses for both the state and the