After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Horacio Arraz Saenz (Saenz), an inmate of the Colorado Department of Corrections, appeals from the district court's Memorandum Opinion and Order denying his 28 U.S.C. 2254 petition for a writ of habeas corpus.

Saenz was convicted following a trial by jury on September 14, 1983, on two counts of first degree murder and one count of conspiracy to commit first degree murder. He was sentenced to two consecutive life sentences on the murder counts and a concurrent twelve-year sentence on the conspiracy count. His direct appeal, post-conviction petition and habeas corpus appeals to the Colorado state courts have been denied. He has exhausted all available state remedies.

The sole issue presented to the district court and on this appeal is whether the state trial court violated Saenz's Sixth Amendment right to counsel of his choice. A United States magistrate judge recommended that Saenz be granted relief on this claim. Following objections filed by the Respondents, the district court rejected the magistrate judge's recommendation and denied Saenz's petition for a writ of habeas corpus.

In rendering its ruling on Saenz's Sixth Amendment choice of counsel claim, the Colorado Court of Appeals made detailed findings regarding the events leading to the state trial court's denial of Saenz's motion to substitute retained counsel for his court-appointed counsel:

Defendant was initially represented by a court-appointed attorney, and a trial date was set for September 6, 1983. Following his arraignment, defendant became dissatisfied with his attorney, and he hired another attorney to represent him with funds obtained from his family.

Defendant's new attorney appeared at a hearing on August 3, 1983, and entered his appearance. The court acknowledged the withdrawal of court-appointed counsel and inquired whether defense counsel would be prepared to begin the trial on its scheduled date. Defense counsel responded that he could not be prepared for a trial in September, and that he had explained to his client the right to speedy trial, and he indicated that defendant had acquiesced to a continuance.

The court then indicated it would grant defendant's request for a continuance, and asked defendant to sign a written waiver of his right to speedy trial. Defendant decided at that point that he would not sign the waiver before first consulting his brother in California.

The court then asked defense counsel about various trial dates in November, and counsel responded that he was looking for December trial dates. After defense counsel stated that he would be unavailable for a November 7, 1983, trial date, and after learning how long the trial could last, the court vacated its previous order allowing defense counsel to enter his appearance. The court ruled that the court-appointed attorney would again represent defendant and that the trial would proceed as originally scheduled.

The record reflects that, with the consent of the prosecution, defense counsel met with the court in chambers on August 5 in an effort to persuade the court to allow entry of appearance. No record was made of this discussion. The court entered a written order denying counsel's request.

Defendant then filed a petition for writ of mandamus with our supreme court on August 8, seeking an order permitting counsel's entry of appearance. The petition was denied.

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Here, the record reveals that defendant's right to counsel of his choice was in conflict with his speedy trial right because defendant had not unequivocally agreed to waive the right to a speedy trial. Defense counsel was offered three alternate trial dates, all of which were within the speedy trial period. Granting defendant's motion for continuance to the December dates suggested by defense counsel would have violated defendant's right to a speedy trial.

Even if we assume that the logistical problems in obtaining attendance of endorsed witnesses for a new trial were not sufficient to warrant the court's decision to vacate its order, the record fails to reflect that defendant unequivocally agreed to waived [sic] his right to speedy trial. Instead, his waiver appears for the first time in an affidavit attached to the petition filed in the supreme court. And, the record fails to reflect that his request for substitute counsel was renewed in the trial court after defendant unequivocally waived his speedy trial rights.

Under these circumstances, we perceive no error in the court's recusal to permit the substitution of counsel.

People v. Saenz, No. 91CA1267 (Colo.App. April 15, 1993) (not selected for publication) slip op. pp. 3-6 (v. I, doc. 10, Appendix H).

While the ultimate legal conclusions regarding Saenz's Sixth Amendment claim are reviewed de novo, the underlying findings of fact rendered by the state court must be accorded a presumption of correctness. 28 U.S.C. 2254(d); Sumner v. Mata, 449 U.S. 539 (1981); Smith v. Secretary Dept. of Corrections, 50 F.3d 801 (10th Cir.1995) (federal habeas courts must afford the presumption of correctness to the state court's findings of basic, primary or historical facts and inference as long as there is at least fair support in the record; however, the state court's conclusions of law are not binding on the federal courts and must be reviewed de novo ); Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994) (same); Jones v. Cowley, 28 F.3d 1067 (10th Cir.1994) (same); Case v. Mondragon, 887 F.2d 1388 (10th Cir.1989) (same).

The district court found, contrary to the magistrate judge, that a conflict did exist between Saenz's right to counsel of his choice and his right to a speedy trial, and that, accordingly, the state trial court's denial of Saenz's motion to substitute counsel was not a violation of Saenz's Sixth Amendment rights. We agree.

We AFFIRM substantially for the reasons set forth in the district court's Memorandum Opinion and Order of March 29, 1995. The mandate shall issue forthwith.