In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-2971

LARRY K. DANKS,

Petitioner-Appellant,

v.

CECIL DAVIS, Superintendent,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:01 CV 0720 AS—Allen Sharp, Judge.

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ARGUED DECEMBER 17, 2003—DECIDED JANUARY 21, 2004

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Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. A gas station in LaPorte County,

Indiana was robbed twice in 1978, first on May 11 and then

again on May 19. During each robbery, the attendant was

shot and killed. Larry Danks told police he was responsible

for both attacks, but was charged initially only with the

May 19 robbery and murder. An Indiana court found him

incompetent to stand trial, committed him to a state

hospital, and, after he regained his competency 5 years

later, tried and convicted him of the May 19 robbery and

murder. Eventually he was also charged with and pleaded

guilty to the May 11 murder.
2 No. 02-2971

Danks sought post-conviction relief arguing that Indiana

violated his right under the Sixth Amendment to a speedy

trial for the May 11 murder by waiting nearly 61⁄2 years to

charge him, but the state courts rejected his argument. He

then petitioned for a writ of habeas corpus under 28 U.S.C.

§ 2254 based upon the same argument. The district court

denied his petition because Danks did not show that the

state courts deviated from Supreme Court precedent in

rejecting his speedy trial argument, and we affirm.

Police detained and questioned Danks after the May 19

robbery and murder. During questioning he initially told

police that he acted alone during both robberies, but later

told police that “Tony” accompanied him during the first

and was the one who actually shot and killed the attendant.

Based upon his confession, police obtained an arrest

warrant for Danks, which they executed while Danks was

still being detained. Police, however, were unable to locate

“Tony,” and Danks refused to give them Tony’s last name.

Although Danks’ arrest warrant described his involvement in both crimes, the prosecutor charged him only with

the May 19 robbery and murder. Before trial on the May 19

crimes, Danks requested a psychiatric evaluation and, after

a competency hearing, the court found him incompetent to

stand trial. Five years later, doctors at the Logansport State

Hospital determined that Danks had become competent,

and the criminal proceedings for the May 19 robbery and

murder resumed. His trial began about 6 months after his

release from the hospital. At trial he raised an insanity

defense, but the jury rejected his defense and found him

guilty. Jurors recommended that he be sentenced to death,

but the court rejected the recommendation and instead

sentenced him to 46 years’ imprisonment.

During Danks’ trial for the May 19 robbery and murder,

the prosecutor for the first time charged Danks with the
No. 02-2971 3

May 11 murder—6 months after his release from the

hospital and 61⁄2 years after the murder. Danks pleaded

“guilty but mentally ill” in exchange for the state’s agreement not to pursue the death penalty. The court sentenced

Danks to 60 years’ imprisonment to run concurrent to his

46-year term for the May 19 crimes, with credit for time

served dating back to his arrest in 1978.

A few months after he was sentenced for the May 11

murder, Danks filed a petition for post-conviction relief with

the state trial court. In it, Danks alleged several constitutional violations, including the violation of his right to a

speedy trial. The petition languished for over 10 years.

Eventually the trial court held a hearing and concluded

that the delay of 61⁄2 years between when the state arrested

Danks for the May 11 murder and when it finally charged

him was “extraordinary.” But the court held that most of

the delay was attributable to Danks’ own incompetency. As

for the remaining delay, the court held that under Doggett

v. United States, 505 U.S. 647 (1992), and Barker v. Wingo,

407 U.S. 514 (1972), Danks could not establish that the

delay had prejudiced him, especially in light of his confession. Accordingly, the trial court denied Danks’ petition.

Danks appealed, arguing that the trial court failed to

recognize several ways in which the state’s delay prejudiced

his defense. For instance, he argued that the delay precluded him from investigating “Tony,” the man Danks told

police was the actual killer. He also argued that his defense

was prejudiced because the scene of the crime had been

razed leaving him unable to investigate the gas station’s

layout, and because one of the doctors who treated him at

the state hospital could no longer testify about his mental

health because he was dead.

But the appellate court held that Danks had not established prejudice. It held that Tony’s existence was imma-
4 No. 02-2971

terial because Danks would still be liable for murder even

if he had only aided and abetted Tony. As for the razing of

the gas station, the court held that Danks had failed to

explain how the gas station’s destruction had hindered

his defense. Finally, the court concluded that Danks had

failed to explain how he was prejudiced by his doctor’s

death “given the extensive involvement of mental health

personnel in this proceeding and Danks’ treatment, . . . a

subject matter upon which there was abundant evidence.”

The appellate court therefore agreed with the trial court

that Danks was not entitled to post-conviction relief and

affirmed. Indiana’s supreme court denied his request for a

transfer.

After exhausting his state remedies, Danks filed with the

district court his pro se petition for a writ of habeas corpus.

The state urged the court to deny Danks’ petition because

the Indiana courts had reasonably applied Doggett and

Barker in concluding that Danks’ defense had not been

prejudiced. In reply, Danks argued that under Doggett he

did not need to establish prejudice because the 61⁄2-year

delay was extraordinary. Alternatively he argued that he

had been prejudiced by the state’s failure to charge him in

1978 because, as a result, no counsel had been appointed to

represent him and preserve evidence that could have

established he was insane at the time of the murder. In

denying the writ, the district court reasoned that Danks

had not identified any evidence lost over time that could

have helped his defense, and therefore the Indiana courts

had reasonably applied Barker. The district court denied his

request for a certificate of appealability, but this court

granted him one on his speedy trial claim.

Although we have held that an unconditional guilty

plea waives altogether a Sixth Amendment speedy trial

claim, see United States v. Gaetner, 583 F.2d 308, 311 (7th

Cir. 1978), the state has not pressed the point and so we

address Danks’ claim on the merits. In order to succeed,
No. 02-2971 5

Danks needed to show that the state court 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 an “unreasonable determination of the facts in light of evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1); see also Wiggins v. Smith, 123 S. Ct. 2527,

2534-35 (2003); Johnson v. Bett, 349 F.3d 1030, 1034

(7th Cir. 2003). Unreasonable is more than just incorrect or

erroneous, Wiggins, 123 S. Ct. at 2535; Johnson, 349 F.3d

at 1034, and therefore federal courts defer to a state court’s

application of Supreme Court precedent as long as it is

“minimally consistent with the facts and circumstances of

the case,” Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir.

2002) (internal quotations and citation omitted), cert.

denied, 123 S. Ct. 2220 (2003).

The Indiana court relied on the four-factor balancing test

set forth in Barker to determine whether Danks’ Sixth

Amendment right to a speedy trial was violated. The four

Barker factors are: 1) the length of delay; 2) the reason for

the delay; 3) the defendant’s assertion of his right to a

speedy trial; and 4) the prejudice to the defendant. Barker,

407 U.S. at 530. Later, the Court held in Doggett that if

under the first factor the length of the delay is no longer

than the ordinary delay in bringing a case to trial, then the

remaining three Barker factors need not be examined.

Doggett, 505 U.S. at 651-52. However, if the delay is longer

than ordinary, the delay is considered “presumptively prejudicial,” and the four Barker factors must be balanced. Id.

Danks asserts that the state court unreasonably applied

Barker and Doggett by requiring him to establish actual

prejudice even though he established presumptive prejudice. But establishing presumptive prejudice does not

relieve a defendant from the burden of showing actual prejudice; rather, as discussed above, it is merely a threshold
6 No. 02-2971

showing that the defendant must make before the remaining Barker factors become relevant. Doggett, 505 U.S. at 656

(“presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria”).

Therefore, the state court did not unreasonably apply

Doggett and Barker when it required Danks to establish

actual prejudice.

Alternatively Danks argues that under Doggett, the state

court should not have required him to demonstrate actual

prejudice because the length-of-delay factor weighed so

heavily in his favor. In support, he likens his 61⁄2-year delay

to the delay in Doggett, where the government lost track of

the defendant until 8 years after his indictment on drug

charges. The Supreme Court concluded in Doggett that

where the defendant’s claim of presumptive prejudice was

not extenuated by his own acquiescence or persuasively

rebutted, the defendant did not need to show particularized

prejudice in light of the extraordinary interval between his

indictment and arrest. Doggett, 505 U.S. at 657-58. But the

Indiana appellate court concluded that Danks’ incompetence was responsible for 5 of the 61⁄2 years the state

delayed charging him, Danks v. State, 733 N.E.2d 474, 482

(Ind. Ct. App. 2000); its conclusion that Danks’ delay was

not as extraordinary as the delay in Doggett is therefore not

unreasonable. See also United States v. Abou-Kassem, 78

F.3d 161, 167 (5th Cir. 1996) (period of incompetency

attributable to defendant, not the state); United States v.

Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (period of evaluating defendant’s incompetency not attributable to the

state); United States v. Jackson, 542 F.2d 403, 407 (7th Cir.

1976) (same).

Danks asserts that the state court should have concluded

that even though he was incompetent during most of the

delay, the entire delay should nevertheless be attributed to

the state because it failed to continually evaluate his
No. 02-2971 7

competency in order to bring charges against him as early

as possible. But Danks fails to explain how the state court

decision strayed from Supreme Court precedent, citing only

the Ninth Circuit’s decision in United States v. Geelan, 520

F.2d 585, 588-89 (9th Cir. 1975), to support his argument.

Even under Geelan, however, Danks cannot establish that

his period of incompetency is attributable to the state. In

Geelan, the prosecutor failed to make any effort during the

defendant’s 5-year commitment to check on his competency

because “the prosecutor apparently forgot about him.” Id. at

589. Danks contends that Indiana also forgot about him,

but according to the state court’s docket the court received

regular reports about Danks from the hospital. The court

also held a hearing in 1983 to determine whether he had

regained his competency yet, but determined that he had

not.

Danks also contends that the state court erred when it

balanced the Barker factors. Specifically, he argues that the

state court should have balanced the actual prejudice factor

in his favor. But as discussed above, this court reviews

whether the state court applied the correct law, not whether

in applying the law it reached the correct decision. Wiggins,

123 S. Ct. at 2535; Johnson, 349 F.3d at 1034. 

Even if our scope of review included determining whether

the state court struck the proper balance between the

Barker factors, Danks has nonetheless failed to establish

that the court should have weighed the prejudice factor in

his favor. Danks argues that because the scene of the crime

had since been razed he could no longer determine whether

the actual layout of the gas station “comported” with his

description to police in 1978, which “could have shed some

light on Danks’ perception of reality at the time.” He also

argues that a doctor who treated him while he was committed had since died and, as a result, expert insight into the

state of his sanity in 1978 had been lost. But Danks had the
8 No. 02-2971

opportunity—and, more importantly, the incentive—to

preserve evidence that he was insane in 1978 after he was

charged that year with the May 19 murder at the same gas

station. He also presented evidence of his insanity at his

trial for the May 19 murder, but jurors rejected it and

concluded that he had been sane.

The only evidence Danks points to which might have allowed him to fare better asserting an insanity defense to

the May 11 murder is evidence that his alleged accomplice

“Tony” was actually just an insane delusion. But Danks

undermined any argument that Tony was a delusion when,

at his sentencing hearing in 1986 for the May 11 murder,

he maintained that Tony was real and continued to refuse

to give his last name in order to protect him:

He has a wife, two kids. He don’t mess around. He don’t

get dru—he don’t get high no more. My life is already

messed up why, how can I mess his up after eight

years.

Danks has therefore failed to show that the state court

erred in concluding that his defense suffered no prejudice

due to the delay in charging him with the May 11 murder.

For the preceding reasons, we AFFIRM the judgment of the

district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-21-04