Hill, Asher v. Wilson, Bill ( 2008 )

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 con-
tents of the cash register. For this conduct he has been
convicted of several offenses and sentenced to life impris-
onment 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 defer-
ring 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 re-
fused to proceed, however, stating that he thought it
inappropriate to conduct a proceeding that could end in
life imprisonment without the principal victim and wit-
ness. The state’s appellate court held this decision a
mistake, given §35-36-7-2(b)(1), but affirmed the convic-
tion 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-representa-
tion—and argues that these principles cover the water-
front. 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 inter-
pose 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 repre-
sents 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 person-
ally. 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 Constitu-
tion—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, how-
ever, 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 author-
ity 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 evid-
ence 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 reason-
ing, 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 to-
gether a narrative gains momentum, with power
not only to support conclusions but to sustain the
willingness of jurors to draw the inferences, what-
ever 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. at521–22 (“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 fed-
eral law.
AFFIRMED
USCA-02-C-0072—3-10-08