                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   April 21, 2008
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                     Clerk of Court


 MARSHALL A. TILLMAN,

       Petitioner-Appellant,
                                                        No. 07-3300
 v.
                                                 (D.C. No. 07-CV-3098-SAC)
                                                          (D. Kan.)
 STATE OF KANSAS; PHILL KLINE,
 Kansas Attorney General,

       Respondents-Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Marshall A. Tillman, a Kansas state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. Tillman seeks a COA on the issue of whether the

nine-year delay between the initial charges and Tillman’s jury trial violated his

Sixth Amendment right to a speedy trial. We deny a COA and dismiss the appeal.

      In 1995, Tillman was indicted for capital murder and rape. Progress toward

trial was slow. The state Capital Defense Coordinator filed several motions, and

the trial court repeatedly ordered evaluations of Tillman’s mental competency to

stand trial. Although Tillman was initially found competent, in 1997 the court
concluded that he was no longer competent to stand trial and sent him to a state

hospital for treatment. In September 1999, Kansas dismissed his case without

prejudice and filed a new complaint charging Tillman with felony murder and

rape.

        Tillman’s jury trial began on February 23, 2004. The jury convicted him of

rape but acquitted him of murder. Tillman was sentenced to 125 months’

imprisonment, and he received time-served credit for 2,712 days. The Kansas

Court of Appeals affirmed his conviction, concluding, among other things, that

his right to a speedy trial was not violated. The Kansas Supreme Court denied

review.

        On April 11, 2007, Tillman filed a § 2254 habeas petition challenging his

conviction. He raised four grounds for relief: (1) ineffective assistance of trial

counsel, (2) conflict with his attorney over continuances, (3) denial of a speedy

trial, and (4) violation of the statutory limitations period. The district court

rejected his speedy trial argument on the merits. As to his remaining three

claims, the court concluded that they were procedurally defaulted and that no

circumstances existed sufficient to excuse that default. The court also denied his

subsequent application for a COA, and Tillman now seeks a COA from this

court. 1 Even construing his application liberally, see Hall v. Bellmon, 935 F.2d

        1
         Because the district court denied Tillman a COA, he may not appeal the
district court’s decision absent a grant of a COA by this court. § 2253(c)(1)(A).
                                                                      (continued...)

                                         -2-
1106, 1110 (10th Cir. 1991), Tillman only seeks a COA with regard to the denial

of his right to a speedy trial. 2

       Tillman was entitled to habeas relief in the district court only if the state

court decision he challenges was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or “based on an unreasonable determination of the

facts in light of the evidence presented.” § 2254(d)(1)-(2). A federal court “may

not issue the writ simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.”

Williams v. Taylor, 529 U.S. 362, 411 (2000).

       The district court properly analyzed Tillman’s petition under Barker v.

Wingo, 407 U.S. 514 (1972), which sets forth four factors that inform whether

pretrial delays violate a defendant’s right to a speedy trial: (1) the length of the

       1
        (...continued)
A COA may be issued “only if the applicant has made a substantial showing of
the denial of a constitutional right.” § 2253(c)(2). This requires Tillman to show
“that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
       2
         Tillman’s COA application also asserts that a Kansas prison facility
“refused to give [him] any jail credits” and that a state hospital filed a forensic
report that falsely attributed an alias to him. These claims were not raised to the
district court in his habeas petition and are therefore waived. See Rhine v.
Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

                                         -3-
delay, (2) the reason for the delay, (3) whether the defendant asserted his right,

and (4) any prejudice to the defendant. Id. at 530. Applying Barker to Tillman’s

case, the Kansas Court of Appeals made a number of relevant findings. It first

assumed that the nine-year delay was presumptively prejudicial. Addressing the

reason for the delay, however, it concluded that Tillman consented to his

counsel’s numerous requests for continuances, and noted that Kansas law

mandated an extensive preparation period for capital cases. In addition, the court

recognized that several mental health referrals, made at defense counsel’s request,

further delayed the proceedings, and found that those delays were compounded by

Tillman’s own refusals to eat and take psychiatric medication. It thus concluded

that, on balance, the second factor weighed against Tillman.

      Turning to the remaining two factors, the court determined that although

Tillman wrote the trial judge in 2000 and invoked his right to a speedy trial, he

soon acquiesced to further continuances by counsel. Finally, the only prejudice

Tillman cited was the fact that he spent nine years in prison awaiting trial, but

this prejudice was offset by the time-served credit Tillman later received and the

fact that, for part of the period, he was simultaneously being held on an unrelated

rape charge.

      The district court concluded that the state court’s analysis was not an

unreasonable determination of the facts or an unreasonable application of Barker.

We recognize that the record does not explain with precision the exact reasons for

                                         -4-
each individual delay that compounded to create a nine-year period between the

initial charges and Tillman’s eventual jury trial. We do not believe, however, that

reasonable jurists could debate the district court’s resolution of the matter under

the highly deferential standard of § 2254(d).

      Tillman’s request for a COA is therefore DENIED and his appeal is

DISMISSED.




                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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