In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 14‐1836 CHESTER O’QUINN, Petitioner‐Appellant,

v.

TOM SPILLER, Respondent‐Appellee. ____________________

Appeal from the United States District Court for the Southern District of Illinois. No. 12‐cv‐00746‐DRH‐CJP — David R. Herndon, Judge. ____________________

ARGUED MAY 28, 2015 — DECIDED NOVEMBER 25, 2015 ____________________

Before FLAUM, KANNE, and SYKES, Circuit Judges. SYKES, Circuit Judge. In late October 1997, Chester O’Quinn was charged in Illinois state court with murdering his girlfriend’s one‐year‐old daughter. Forty‐two months lat‐ er his case proceeded to trial and a jury found him guilty. Af‐ ter exhausting his state appeals, O’Quinn filed a federal ha‐ beas petition under 28 U.S.C. § 2254 raising multiple claims of constitutional error. Only one is relevant here: O’Quinn contends the pretrial delay violated his Sixth Amendment 2 No. 14‐1836

right to a speedy trial. The district court denied the habeas petition but granted a certificate of appealability on this sin‐ gle issue. On O’Quinn’s direct appeal, the Illinois Appellate Court found the 42‐month delay presumptively prejudicial but nonetheless rejected his speedy‐trial claim after concluding that the delay was attributable to continuances requested by his lawyer and did not impair the defense. That was a rea‐ sonable application of Barker v. Wingo, 407 U.S. 514 (1972), the controlling Supreme Court precedent for Sixth Amend‐ ment speedy‐trial claims. Accordingly, we affirm the denial of habeas relief.

I. Background On October 31, 1997, O’Quinn was arrested and charged with first‐degree murder for shaking his girlfriend’s thirteen‐ month‐old daughter to death. On November 5 his counsel filed a speedy‐trial demand. Between his arrest and trial, however, there were 28 continuances, 23 of which were re‐ quested solely by O’Quinn’s counsel. The trial finally began on April 2, 2001, three years and five months after O’Quinn was charged. Twice during this pretrial delay O’Quinn sent pro se let‐ ters to the court complaining that his counsel had requested the continuances against his wishes. O’Quinn’s letters sought removal of his counsel and reasserted his demand for a speedy trial. The record does not show whether his counsel, the court, or the prosecutor responded to these letters in any way. No. 14‐1836 3

A jury convicted O’Quinn and he was sentenced to 70 years in prison. On direct appeal he argued, among other things, that the long pretrial delay violated his Sixth Amendment right to a speedy trial. Applying the test estab‐ lished in Barker, the Illinois Appellate Court determined that because O’Quinn’s counsel was responsible for the delay, it was attributable to O’Quinn himself. People v. O’Quinn, 791 N.E.2d 1066, 1071–72 (Ill. App. Ct. 2003). The state court also concluded that the delay did not prejudice O’Quinn’s defense. Id. The Illinois Supreme Court denied leave to ap‐ peal. After exhausting state post‐conviction remedies, O’Quinn petitioned for federal habeas relief under § 2254. He raised 11 claims, including a reprise of his Sixth Amendment speedy‐trial claim. The district judge consid‐ ered and rejected each argument, but he also certified the speedy‐trial issue for appeal. O’Quinn appealed, and we ap‐ pointed counsel to assist him.1

II. Discussion As we’ve noted, the sole issue on appeal is whether O’Quinn’s Sixth Amendment right to a speedy trial was vio‐ lated. We’re not concerned, for example, with whether the numerous continuance requests by O’Quinn’s trial attorney amounted to ineffective assistance of counsel. The scope of our review is further limited by the deferential standard for federal review of state‐court convictions under § 2254. We

1 The court thanks Thomas L. Shriner, Jr., David J.B. Froiland, and Ryan

N. Parsons, of Foley & Lardner LLP, for accepting the pro bono appoint‐ ment. They have ably discharged their duties. 4 No. 14‐1836

ask only whether the Illinois Appellate Court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The right to a speedy trial is guaranteed by the Sixth Amendment,2 and the Supreme Court’s decision in Barker provides the framework for evaluating claimed violations of the right. The Court in Barker identified four factors that bear on the question whether a particular defendant has been de‐ prived of the right: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530. No factor is “a necessary or sufficient condition to the finding of a deprivation of the right.” Id. at 533. Rather, “they are related factors and must be considered together with such other circumstances as may be relevant.” Id. This ad hoc, fact‐sensitive balancing test gives state courts significant latitude to reach reasonable decisions based on the specific circumstances of each case. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (“[T]he balance arrived at in close cases ordinarily would not prompt this Court’s review … .”).

2 In relevant part, the Sixth Amendment provides: “In all criminal prose‐

cutions, the accused shall enjoy the right to a speedy and public tri‐ al … .” U.S. CONST. amend. VI. The Sixth Amendment’s guarantee of a speedy trial in all criminal prosecutions is a fundamental right incorpo‐ rated against the States by the Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213 (1967). No. 14‐1836 5

The first factor in the Barker test is the length of the pre‐ trial delay. This is a double inquiry. First, the length of the delay operates as a trigger—a delay longer than one year triggers the full Barker analysis. Second, the length of the de‐ lay is an independent factor—the longer the delay, the more the presumption of prejudice against the defendant intensi‐ fies. See Doggett v. United States, 505 U.S. 647, 652 (1992). Here, the Illinois Appellate Court correctly recognized that the 42‐month delay met the trigger and proceeded to apply the full Barker analysis. O’Quinn, 791 N.E.2d at 1071–72. Barker’s second factor examines the reasons for the delay. This obviously is a highly case‐specific inquiry, but Barker established a few general principles. 407 U.S. at 531. For ex‐ ample, “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” Id. At the other end of the spectrum, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily[,] … [and] a valid reason, such as a missing witness, should serve to justify appropri‐ ate delay.” Id. O’Quinn argues that his case falls somewhere in the middle of this spectrum because the State was negligent in allowing the 28 continuances. This argument overlooks the basic principle that the actions and decisions of defense counsel are attributable to the defendant, see Brillon, 556 U.S. at 92, and in O’Quinn’s case almost all of the delay resulted from continuances requested by his own lawyer. O’Quinn apparently disagreed with his attorney’s continuance re‐ quests, but that doesn’t transfer the responsibility for the de‐ lay to the State. Unless the State is responsible for the delay 6 No. 14‐1836

in bringing the defendant to trial, there can be no speedy‐ trial violation. Id. at 93–94. O’Quinn correctly notes that the Illinois Appellate Court mistakenly attributed the entire period of delay to the de‐ fense. The court stated that “[t]he record clearly establishes that defense counsel caused all the pretrial delay, and there‐ fore, the delay must be attributed to [the] defendant.” O’Quinn, 791 N.E.2d at 1073 (emphasis added). As the par‐ ties now agree, 156 days of delay—approximately five months of the 42‐month total—were attributable to the pros‐ ecution. So the state court overstated O’Quinn’s responsibil‐ ity for the delay. But this mistake of fact cannot support ha‐ beas relief unless O’Quinn can show that the state court’s de‐ cision was based on it. See § 2254(d)(2) (stating that relief should not be granted unless the proceedings “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”) (emphasis added); see also Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011); Juan H. v. Allen, 408 F.3d 1262, 1270 n.8 (9th Cir. 2005). Because the continuances re‐ quested by O’Quinn’s lawyer accounted for almost all of the pretrial delay—about 90% of the total—it cannot reasonably be argued that this modest factual mistake had any mean‐ ingful effect on the state court’s decision. The factual error had no constitutional significance. There’s no controversy about the third factor in the Barker analysis: O’Quinn asserted his right to a speedy trial in two pro se letters objecting to the continuances. The state court correctly accounted for this factor. O’Quinn, 791 N.E.2d at 1073. No. 14‐1836 7

The fourth and final factor looks to whether the defend‐ ant was prejudiced by the delay. Barker, 407 U.S. at 532. In this context, prejudice is not limited to effects on a defend‐ ant’s trial strategy. Barker explained that the Sixth Amend‐ ment’s speedy‐trial guarantee protects several interests: (1) it guards against “oppressive pretrial incarceration”; (2) it min‐ imizes the “anxiety and concern of the accused”; and (3) it “limit[s] the possibility that the defense will be impaired.” Id. But the “most serious [of these] is the last[] because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. The Illinois Appellate Court mentioned the intrinsic di‐ mensions of prejudice, noting that O’Quinn “spent a lengthy amount of time” in pretrial incarceration, which caused “unnecessary anxiety and concern.” O’Quinn, 791 N.E.2d at 1073–74. But the court’s prejudice analysis focused primarily on whether the lengthy delay impaired his defense. Id. O’Quinn had argued that the delay prevented him from call‐ ing his estranged wife as a witness because she died before trial. The court considered and rejected this argument. The record revealed that O’Quinn’s attorney had ruled out the estranged wife as a witness because she would have been decidedly unhelpful to the defense. Id. (explaining that the defense attorney had moved to exclude evidence that O’Quinn had been investigated for abusing his estranged wife’s children). O’Quinn doesn’t quarrel with the state court’s reasoning on this point. He argues instead that the court gave insuffi‐ cient weight to the presumed prejudice arising from a delay of this length. Although the length of delay both establishes and intensifies the presumption of prejudice, “the presumed 8 No. 14‐1836

prejudice flowing from a long delay is ‘insufficient to carry a speedy trial claim absent a strong showing on the other Bark‐ er factors.’” Ashburn v. Korte, 761 F.3d 741, 753 (7th Cir. 2014) (quoting United States v. Oriedo, 498 F.3d 593, 600 (7th Cir. 2007)). A strong showing of prejudice does not appear in this record. As important, the vast majority of the pretrial delay was properly attributed to O’Quinn. In short, the state court’s decision was not an unreasona‐ ble application of federal law. As such, habeas relief is un‐ warranted. AFFIRMED.