In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2777

ASHER B. HILL,

Petitioner-Appellant,

v.

BILL WILSON, SUPERINTENDENT,

WESTVILLE CORRECTIONAL FACILITY,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:04-CV-506 PS—Philip P. Simon, Judge.

____________

ARGUED FEBRUARY 22, 2008—DECIDED MARCH 10, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and POSNER,

Circuit Judges.

EASTERBROOK, Chief Judge. Asher Hill entered a liquor

store in Indianapolis, shot the clerk, and stole the contents of the cash register. For this conduct he has been

convicted of several offenses and sentenced to life imprisonment without possibility of parole, because his many

convictions make him a habitual offender under Indiana

law. The clerk survived and was prepared to testify against

Hill but suffered a heart attack just before trial. The judge

postponed the trial for two months; Hill contends, in this
2 No. 06-2777

proceeding under 28 U.S.C. §2254, that by doing this the

judge violated two of his constitutional rights. The state

judiciary rejected these arguments, Hill v. State, 773 N.E.2d

336 (Ind. App. 2002), 777 N.E.2d 795 (Ind. App. 2002), as

did a federal district judge, Hill v. McBride, 2006 U.S. Dist.

LEXIS 39599 (N.D. Ind. Mar. 30, 2006).

Hill invokes the speedy trial clause and the right to

choose between counsel and self-representation. The state

judge violated both rights at once, he maintains, by deferring the trial until the clerk had recovered. Hill, who was

representing himself in the state proceedings, opposed the

delay on the basis of the state’s speedy-trial statute,

which provides that a trial may not be postponed on

account of a missing witness when the defendant agrees

that the prosecutor may use, as evidence, the prosecutor’s

version of what the witness would say if available to

testify. Ind. Code §35-36-7-2(b)(1). Hill agreed that the

prosecution could introduce a narrative summarizing

the clerk’s likely testimony. Evidently he thought that

such an antiseptic presentation would resonate less with

the jury than the appearance in court of a victim who

would identify Hill as the assailant and add details that

might be omitted from a summary. The trial judge refused to proceed, however, stating that he thought it

inappropriate to conduct a proceeding that could end in

life imprisonment without the principal victim and witness. The state’s appellate court held this decision a

mistake, given §35-36-7-2(b)(1), but affirmed the conviction because Hill received a fair trial that satisfied all

constitutional requirements.

Hill insists that the violation of state law also offends the

federal Constitution. The speedy-trial clause allows a trial

to be postponed for a good reason, he allows, but this
No. 06-2777 3

postponement (which lasted 56 days) was for a bad

reason—at least as Indiana classifies reasons for delay.

Moreover, he maintains, by rejecting his willingness to

proceed on a written summary of the clerk’s evidence

the judge violated his right to self-representation. See

Faretta v. California, 422 U.S. 806 (1975).

A federal court may afford relief to a state prisoner if the

state 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”. 28 U.S.C. §2254(d)(1). Hill does not identify any

decision of the Supreme Court holding that even remotely

comparable events violate the Constitution. Instead

he invokes principles of very high generality—such as

Faretta’s holding that there is a right of self-representation—and argues that these principles cover the waterfront. That’s not sound; he might as well point to the Bill

of Rights itself. The Supreme Court has held that a

right becomes “clearly established” only when a course

of decisions has established how the Constitution’s

grand generalities apply to a class of situations. See, e.g.,

Wright v. Van Patten, 128 S. Ct. 743 (2008); Carey v.

Musladin, 127 S. Ct. 649 (2006). Indiana did not transgress

any right “clearly established” by this standard; indeed,

the state court did not commit a constitutional error by

any standard.

We start with self-representation. A court cannot interpose an unwanted lawyer between the defendant and the

tribunal or refuse to accept from the defendant motions

that it would entertain if made by counsel. See McKaskle v.

Wiggins, 465 U.S. 168, 178–79 (1984). The state judge did not

do either of these things. Hill can prevail only if the sixth

amendment creates a rule that motions made pro se must
4 No. 06-2777

be granted (or, perhaps, that no state court may err

in ruling on a proposal made by a defendant who represents himself). No decision of the Supreme Court clearly

establishes such a right.

The state judge said enough to show that he would have

postponed the trial whether or not Hill was representing

himself. A request that would be denied, if presented by

counsel, may be denied if presented by the accused personally. Hill’s argument entails the proposition that, if he

had chosen to be represented by counsel, who (like Hill)

had consented to the use of a proffer in lieu of testimony,

and the judge had postponed the trial nonetheless, then

the state would have violated Hill’s right to have the

assistance of counsel for his defense. The problem that

occurred in this proceeding is unrelated to the right to

have or abjure counsel’s aid. The judge did not refuse to

allow Hill to dispense with counsel, or establish a category

of arguments that only a lawyer can present, but simply

made an error of state law when deferring the trial. And

errors of state law do not justify collateral relief under

§2254. See, e.g., Gilmore v. Taylor, 508 U.S. 333, 342 (1993);

Estelle v. McGuire, 502 U.S. 62 (1991).

As for the right to a speedy trial: Hill enjoyed one. The

trial occurred almost exactly one year after Hill’s arrest

and less than two months after the hearing at which he

proposed to dispense with the clerk’s testimony. The

Supreme Court has never suggested that so brief an

interval between arrest and trial violates the Constitution—though it has held that much longer delays do not.

See, e.g., Barker v. Wingo, 407 U.S. 514 (1972) (five years

and three months); United States v. Loud Hawk, 474 U.S.

302 (1986) (more than seven years). Hill tries to bootstrap

an error of state law into a violation of the Constitution by
No. 06-2777 5

arguing that the state law shows that the reason for delay

was impermissible. What reasons for delay count as

good and bad for constitutional purposes depends, however, on the Constitution rather than state law.

The reason that Hill wants to label a bad one—waiting

for the restoration to health of a major witness—is one

that the Supreme Court has included in the category of

good reasons for delay. See Barker, 407 U.S. at 531 (“a valid

reason, such as a missing witness, should serve to

justify appropriate delay”). Live testimony has value

even when the defense prefers a paper substitute:

[T]he prosecution is entitled to prove its case by

evidence of its own choice, or, more exactly, . . . a

criminal defendant may not stipulate or admit his

way out of the full evidentiary force of the case as

the Government chooses to present it. The authority usually cited for this rule is Parr v. United States,

255 F. 2d 86 (CA5), cert. denied, 358 U. S. 824

(1958), in which the Fifth Circuit explained that

the “reason for the rule is to permit a party ‘to

present to the jury a picture of the events relied

upon. To substitute for such a picture a naked

admission might have the effect to rob the evidence of much of its fair and legitimate weight.’ ”

255 F.2d, at 88 (quoting Dunning v. Maine Central R.

Co., 91 Me. 87, 39 A. 352, 356 (1897)). . . . Unlike an

abstract premise, whose force depends on going

precisely to a particular step in a course of reasoning, a piece of evidence may address any number

of separate elements, striking hard just because it

shows so much at once; the account of a shooting

that establishes capacity and causation may tell

just as much about the triggerman’s motive and

intent. Evidence thus has force beyond any linear
6 No. 06-2777

scheme of reasoning, and as its pieces come together a narrative gains momentum, with power

not only to support conclusions but to sustain the

willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest

verdict. This persuasive power of the concrete and

particular is often essential to the capacity of jurors

to satisfy the obligations that the law places on

them.

Old Chief v. United States, 519 U.S. 172, 186–87 (1997). States

are free to take a different view, but they do so as a matter

of their own law. The Constitution’s meaning does not

change from state to state, and year to year, according

to the majority vote of a local legislature.

The best way to conduct analysis under §2254 is to

assume that the state wants to act exactly as its officers

(including its judges) have done, and then ask whether

the federal Constitution countermands that decision. See,

e.g., Gordon v. Degelmann, 29 F.3d 295, 300–01 (7th

Cir. 1994); United States v. Martin, 399 F.3d 879 (7th Cir.

2005). The Constitution does not prevent a state from

waiting two months for the principal witness (and victim)

to recover and testify in person. See Barker, 407 U.S. at

521–22 (“If, for example, the State moves for a 60-day

continuance, granting that continuance is not a violation of

the right to speedy trial unless the circumstances of

the case are such that further delay would endanger

the values the right protects.”). It follows that Indiana

has not contravened any clearly established rule of federal law.

AFFIRMED

USCA-02-C-0072—3-10-08