Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 3387 - Alfred Y. Kirkland, Judge.
Before Cummings and Wood, Circuit Judges, and Van Pelt, Senior District Judge.*fn*
Barksdale appeals the district court's granting of summary judgment for respondent on three paragraphs of a seven paragraph petition for writ of habeas corpus.*fn1 Barksdale contends the district court erred in granting summary judgment with respect to
1. the claim that he was denied a speedy trial;
2. the claim that his car was illegally searched in violation of the fourth amendment; and
3. the claim that the trial court admitted unreliable eyewitness testimony and evidence of other crimes which was so prejudicial as to deny him due process of law.
Having reviewed the various state and federal decisions and records, we conclude these contentions are meritless, and affirm.
Barksdale was convicted in the Illinois state courts of aggravated kidnapping, rape and deviate sexual conduct. He appealed the conviction to the Illinois Appellate Court. The conviction was affirmed. See People v. Barksdale, 24 Ill.App.3d 489, 321 N.E.2d 489 (1974). Denial of a right to speedy trial was not alleged or dealt with in the state court appeal. The appellee argues that Barksdale's failure to raise this issue in the state courts and exhaust his state remedies is fatal to any review by a federal court on habeas corpus. This is generally the law. See Pitchess v. Davis, 421 U.S. 482, 486, 95 S. Ct. 1748, 1751, 44 L. Ed. 2d 317 (1975). The statute, 28 U.S.C. § 2254, conferring habeas corpus jurisdiction on federal courts, provides:
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
This court has previously found the Illinois Post-Conviction Hearing Act is an ineffective remedy as interpreted by the Illinois state courts. See United States ex rel. Williams v. Israel, 556 F.2d 865 (7th Cir. 1977); United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974). Following a direct appeal, the Illinois state courts consider that the doctrines of res judicata and waiver apply to all claims which were raised in that appeal or could have been raised. Since Barksdale's claim could have been raised in the state courts, it would be deemed waived and he would have no state remedy. Therefore, we reach the merits of this issue, as did the district court.
Appellant claims that the district court failed to consider the balancing criteria set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), for speedy trial claims and that the district court erred in finding that Barksdale himself requested or agreed to all of the continuances.
The Barker court identified four factors which should be balanced in considering whether there has been denial of a speedy trial: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to defendant. Id. at 530, 92 S. Ct. 2182. It is clear from the opinion that failure of the defendant to object to delays weighs heavily against him.
We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely ...