                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1172

A LBERT W EST,
                                             Petitioner-Appellant,
                                v.

D ENISE S YMDON, Administrator,
Division of Community Corrections,
and JENNIFER D UFFY, Supervising Agent,

                                          Respondents-Appellees.


            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
     No. 10-C-0157—William E. Callahan, Jr., Magistrate Judge.



       A RGUED JUNE 4, 2012—D ECIDED A UGUST 2, 2012




 Before K ANNE, W OOD , and T INDER, Circuit Judges.
  W OOD , Circuit Judge. Albert West filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, alleging that
his right to a speedy trial was violated by a 14-month
delay. We conclude that the state court did not unrea-
sonably apply federal law in finding that West was not
2                                               No. 11-1172

prejudiced by the delay and thus affirm the district
court’s decision denying West’s petition.


                              I
  West was convicted by a jury of second degree sexual
assault of a child in violation of Wis. Stat. § 948.02(2) and
sentenced to three years’ imprisonment followed by six
years’ extended supervision. On appeal, he argues
only that his constitutional right to a speedy trial was
violated by a 14-month delay between the filing of
charges against him and the scheduled start of his trial.
This delay prejudiced him, he contends, because his
allegedly key alibi witness, Damien Robinson, died in the
interim. The state court rejected his constitutional claim
and summarily affirmed his conviction. West sub-
sequently sought habeas corpus relief in the district
court, which denied his petition.
  Our evaluation of his request is structured by the
highly deferential approach to the state court’s judgment
that is required by 28 U.S.C. § 2254. A federal court may
grant a state prisoner’s application for a writ of habeas
corpus only when, as relevant here, the state court’s
adjudication on the merits of the claim “resulted in a
decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). West contends that he is
entitled to relief from the decision of the Wisconsin
Court of Appeals rejecting his speedy trial claim. A deci-
sion “involves an unreasonable application” of clearly
No. 11-1172                                                 3

established federal law “if the state court correctly identi-
fies the governing legal principle from our decisions
but unreasonably applies it to the facts of the particular
case.” Bell v. Cone, 535 U.S. 685, 694 (2002). An unrea-
sonable application is more than merely incorrect; it
“means something like lying well outside the boundaries
of permissible differences of opinion.” Hardaway v.
Young, 302 F.3d 757, 762 (7th Cir. 2002).
  In this case, there is no doubt that the state court identi-
fied the correct line of Supreme Court decisions. We
focus therefore on the question whether the Wisconsin
Court of Appeals unreasonably applied the applicable
law when it disposed of West’s speedy trial claim. The
Supreme Court has established a four-part balancing
test to determine whether a defendant’s constitutional
right to a speedy trial has been violated: [1] “[l]ength
of delay, [2] the reason for the delay, [3] the defendant’s
assertion of his right, and [4] prejudice to the defendant.”
Barker v. Wingo, 407 U.S. 514, 530 (1972). These are not
factors that may be ticked off mechanically; instead,
the Supreme Court has indicated that the Barker test
involves a “difficult and sensitive balancing process.” Id.
at 533.
  The state court found that the first three factors
weighed in West’s favor, but it concluded that his claim
ultimately failed because the delay did not prejudice
him. The district court was satisfied that the state
court’s analysis was not an unreasonable application
of the Supreme Court’s speedy trial jurisprudence. We
review the district court’s findings of fact for clear error
4                                              No. 11-1172

and its legal conclusions de novo. Rittenhouse v. Battles,
263 F.3d 689, 695 (7th Cir. 2001). Looking back to the
state court decisions, we note that the Wisconsin Court
of Appeals adopted West’s appellate counsel’s analysis
of his speedy trial violation as its own. We therefore
will treat counsel’s report (“no-merit report”) as the
state court’s opinion.


                            II
                            A
  The chronology of events is critical to a proper evalua-
tion of West’s speedy trial claim. In 2004, West allegedly
had sexual intercourse with his ex-girlfriend’s 15-year
old sister in his car at the Fond du Lac fair. This led to
a criminal complaint filed by the State against West on
June 15, 2005, charging one count of sexual assault of a
child under 16 years of age in violation of Wis. Stat.
§ 948.02(2). The State issued a summons with the
criminal complaint for a scheduled initial appearance
on July 12, 2005. The summons was sent to a street
address, but West was incarcerated at the time and was
not made aware of its delivery. The court issued a
warrant for his arrest when he failed to appear. He
was later advised of the charge in September 2005 and
asserted his right to a speedy trial on October 4, 2005, in
a “Motion Requesting to Dismiss the Detainer.” He
stated in the motion that he could “no longer find his
witness due to the long wait in prosecuting the
above-entitled case, timely.” The witness was not named.
No. 11-1172                                              5

  West made his initial appearance in court on Novem-
ber 5, 2005, at which time the court scheduled a jury trial
to begin on August 10, 2006. West’s defense counsel
requested that the trial date be postponed because of
her vacation plans, and so it was rescheduled for Septem-
ber 18, 2006. In the meantime, it turned out that the
mysterious alibi witness was one Damien Robinson,
who had been killed on December 11, 2005. On Septem-
ber 12, 2006, West moved for dismissal on the ground
that his right to a speedy trial was allegedly violated
because Robinson died before the trial could take place.
The court adjourned the trial and held a hearing on
September 19, 2006, to consider whether trial should
be delayed further because counsel needed to investigate
whether Robinson would have been a useful alibi wit-
ness. At the end of the hearing, the court denied
West’s motion. The trial was rescheduled to begin on
January 4, 2007. West filed a motion to adjourn to allow
the filing of a Petition for Leave to Appeal the Trial
Court’s Order denying the dismissal. The court granted
the extra time for filing the petition, but it later denied
relief.
  The trial was rescheduled to begin on May 22, 2007,
but on May 16 the court granted West’s motion for an
adjournment and to allow his counsel to withdraw. The
trial finally began on February 19, 2008, and the jury
promptly convicted West the following day. West
wanted to appeal his conviction, but his appointed ap-
pellate counsel filed a no-merit report under Wis. Stat.
§ 809.32(1) addressing the question whether West’s con-
stitutional right to a speedy trial had been violated.
6                                                No. 11-1172

Counsel concluded that no speedy trial violation had
occurred.


                              B
   West’s habeas corpus petition can succeed only if his
Sixth Amendment right to a speedy trial was violated
by the course of events we have just narrated. It is im-
portant in this connection to recall that this is a more
flexible test than the statutory one that applies to
federal defendants. The dispute between the parties is
narrow: the state court found that the length of the
delay, the reason for the delay, and the defendant’s
diligence in asserting his rights all tilted in West’s
favor, and we see nothing to criticize in those conclu-
sions. There was a 14-month delay between the State’s
filing of its criminal complaint and the scheduled start
of the trial. (We disregard later postponements, all of
which appear to have been at West’s or his counsel’s
request.) This delay exceeds the 12 months generally
required for a delay to be “presumptively prejudicial,” but
just barely. Doggett v. United States, 505 U.S. 647, 652 & n.1
(1992) (requiring courts to consider “the extent to which
the delay stretches beyond the bare minimum needed
to trigger judicial examination of the claim”). The state
court also reasonably concluded that the period from
the filing of the complaint (June 15, 2005) to West’s
initial appearance (November 5, 2005) weighs heavily
in West’s favor because the State should have known
about his incarcerated status, but it failed to act on that
information for no explicable reason. The second period
No. 11-1172                                             7

from the initial appearance to the first trial date
(August 10, 2006) also weighs in West’s favor, although
less heavily because the delay was caused by “normal
calendaring” in the court. Turning to the third factor,
the state court found that West asserted his right to a
speedy trial on October 4, 2005. West notes that the court
failed to mention his second assertion of his right on
September 12, 2006. The court appears to have neglected
to mention the latter assertion, but any error in that
connection is of no consequence because the court
found that this factor favored West.
  Thus, this case boils down to the fourth question:
whether the delay prejudiced West. Prejudice is the most
important of the four Barker factors. Barker, 407 U.S. at
532. The Supreme Court has identified three relevant
interests underlying prejudice: “(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility
that the defense will be impaired.” Id. The third interest
is the most significant because the fairness of the pro-
ceedings is undermined by an inadequately prepared
criminal defendant. Id. The state court appears to have
focused exclusively on the third interest, without dis-
cussing the first two. Our own review of the record
reveals that the first two interests do not help West.
He was incarcerated for a separate offense during the
delay, which as a practical matter means that he cannot
claim that he suffered oppressive pretrial incarceration.
Even though West’s parole was revoked for the con-
duct underlying the offense, the revocation occurred
in December 2004, before the time when he was charged
8                                             No. 11-1172

with the crime at issue. As for anxiety and concern,
West admitted that he was not aware of the charge
until several months after the State filed the complaint.
Undoubtedly he experienced some emotional stress
during the remaining delay, but it carries less weight
when compared to the most important factor: impairment
of defense.
  The focal point of West’s appeal centers on the ques-
tion whether his defense was harmed because his alleged
alibi witness, Damien Robinson, died during the delay.
West argues that Robinson would have testified that
West was not at the fair during the alleged sexual as-
sault. The state court concluded that the trial court
was justifiably suspicious of the witness. Trial counsel
stated that she was not notified that there was an alibi
witness for her client until September 1, 2006, even
though she had been involved in the case since West’s
initial appearance. The court further concluded that
the verdict would not have been different even if
Robinson had testified. It emphasized that another wit-
ness, Kellie O’Laughlin, admitted at trial that she gave
a false statement about West’s whereabouts on the date
of the offense to help his defense after learning that
his alibi had died. Three witnesses—Dani Kofford,
Zachery Martin, and Gerald Luchinski—testified that
they saw West at the fair on the date of the offense. The
state court concluded that it was “inconceivable that
had Mr. Robinson been present and provided an alibi,
that the jury would have found him to be credible.”
Perhaps this went too far. There is no evidence in
the record concerning the relative credibility of the wit-
No. 11-1172                                             9

nesses, and so nothing but speculation could have led the
state court to think that Robinson would have been
an untrustworthy witness.
  Even so, the record contains ample evidence sup-
porting the state court’s ultimate conclusion that West
was not prejudiced by the delay here. Robinson did not
die anywhere close to the “presumptively prejudicial”
12-month mark; rather, he passed away six months
after the State filed its complaint. Had the trial started
shortly thereafter, West would have been hard pressed
to bring a successful speedy trial claim, because
he would have been almost six months short of the
12-month Barker trigger. Barker, 407 U.S. at 532. Indeed,
at the time West started complaining about his speedy
trial rights, the remedy would not have been dismissal
of the charges; it would have been the prompt
scheduling of the trial. When one also considers the
strength of the evidence the State presented to show
that West was indeed at the fair and with the victim,
we cannot find that the state court’s conclusion on preju-
dice was unreasonable.


                           III
  Accordingly, we A FFIRM the district court’s order
denying West’s habeas corpus petition.




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