                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-2971
LARRY K. DANKS,
                                            Petitioner-Appellant,
                                v.

CECIL DAVIS, Superintendent,
                                           Respondent-Appellee.
                         ____________
            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.
                         ____________
 ARGUED DECEMBER 17, 2003—DECIDED JANUARY 21, 2004
                   ____________



 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 6½ 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 involve-
ment 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 6½ years after the murder. Danks pleaded
“guilty but mentally ill” in exchange for the state’s agree-
ment 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 constitu-
tional 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 6½ 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 confes-
sion. 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 pre-
cluded 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 estab-
lished 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 6½-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 “unrea-
sonable 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 pre-
judicial,” 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 preju-
dice. But establishing presumptive prejudice does not
relieve a defendant from the burden of showing actual pre-
judice; rather, as discussed above, it is merely a threshold
6                                               No. 02-2971

showing that the defendant must make before the remain-
ing Barker factors become relevant. Doggett, 505 U.S. at 656
(“presumptive prejudice cannot alone carry a Sixth Amend-
ment 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 6½-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’ incompe-
tence was responsible for 5 of the 6½ 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 evalu-
ating 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 commit-
ted 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 al-
lowed 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
