Van Patten, Joseph v. Endicott, Jeffrey ( 2006 )


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  •                           In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 04-1276
    JOSEPH VAN PATTEN,
    Petitioner-Appellant,
    v.
    JODINE DEPPISCH,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 98 CV 1014—Rudolph T. Randa, Chief Judge.
    ____________
    ARGUED SEPTEMBER 21, 2005—DECIDED JANUARY 24, 2006
    ____________
    Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
    EVANS, Circuit Judge. Telephone conversations with
    clients are a big part of what lawyers do. But can using
    a telephone while representing a client go too far? This
    habeas case presents the novel—but, in the endless quest
    for efficiency, perhaps inevitable—question: What does
    the law require when a client on the other end of a tele-
    phone hookup with his lawyer is standing before a judge,
    about to relinquish a bevy of important constitutional
    rights?
    Joseph Van Patten was charged with one count of first
    degree intentional homicide following a fatal shooting in
    Shawano County, Wisconsin. One day in September 1995,
    2                                             No. 04-1276
    while he was in jail awaiting trial, Van Patten got a call
    from his attorney, James B. Connell. Connell informed Van
    Patten that he would shortly be transported to court for a
    change of plea hearing. Under an oral agreement Connell
    had reached with the prosecutor, Van Patten was to enter a
    plea of no contest to a charge of first degree reck-
    less homicide, with a penalty enhancement for commit-
    ting the offense while using a dangerous weapon. (Van
    Patten would later testify that he had some questions about
    the arrangement which he had been unable to raise in the
    phone call with Connell.)
    At the court hearing later that day, Connell “appeared”
    via speakerphone. Apparently this was due not to any
    last-minute problem, but simply for the convenience of
    everyone’s schedules. Connell would later explain that he
    had appearances in two other counties that day; that the
    court was holding time for Van Patten’s trial; that wit-
    nesses were waiting to know whether they would be needed;
    and that “everyone wanted to get this matter concluded.”
    No one asked Van Patten whether he objected to his attor-
    ney’s absence from the hearing, or whether he would prefer
    to reschedule the hearing to a time when his attorney could
    appear in person.
    As the participants huddled around a speakerphone on
    the judge’s bench, the judge encouraged Van Patten to “take
    all the time you need to confer with your attorney, and we
    can perhaps get him on the line in a private place so you
    could talk to him privately also.” The judge then informed
    Van Patten that “[e]verything here is going to be on the
    record.” The court quizzed Van Patten to be sure he under-
    stood what was happening at the hearing, including the
    constitutional guarantees—his rights to a speedy and public
    trial, to trial by jury, to confront accusers, to compel
    witnesses, and to not serve as a witness against him-
    self—he was about to forfeit by pleading no contest. Van
    Patten’s only extended comments related to whether he
    No. 04-1276                                                  3
    would be allowed a visit in jail from his daughter. Satisfied
    that everything was in order, the judge accepted the plea.
    Two months later, Van Patten was sentenced to a maxi-
    mum term of 25 years in prison.
    After retaining different counsel, Van Patten moved
    to withdraw his plea, arguing that Connell’s failure to
    appear in person at the change of plea hearing violated
    his Sixth Amendment right to counsel. At the hearing
    on that motion, Van Patten testified that he had wanted a
    jury trial but felt “forced” to enter a no-contest plea because
    Connell told him if he didn’t, the prosecutor would “make
    sure I would die in prison.” Asked whether at any point
    during the hearing he asked to speak to his attorney on a
    private line, Van Patten said no, because Connell told him
    to “just say yes and just go along with everything.” Van
    Patten testified that he would not have entered his plea if
    his attorney had been present at the hearing. The court
    denied Van Patten’s postconviction motion. Claiming that
    he was denied his right to the assistance of counsel, Van
    Patten embarked on an odyssey of appellate proceedings.
    The Wisconsin Court of Appeals analyzed Van Patten’s
    Sixth Amendment claim as a complaint of ineffective
    assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    (1984). Under Strickland, a defendant must
    show that his counsel’s performance fell below an objec-
    tive standard of reasonableness. 
    Id. at 688.
    The court’s
    review of the attorney’s performance must be “highly
    deferential[,] . . . indulg[ing] a strong presumption that
    counsel’s conduct falls within the wide range of reasonable
    professional assistance.” 
    Id. at 689.
    Under Strickland’s
    second prong, the defendant also bears the burden of
    showing prejudice—that is, a reasonable probability that,
    but for counsel’s errors, the result of the proceeding
    would have been different. 
    Id. at 694.
    The state appellate
    court said its review of the plea hearing transcript “neither
    indicates any deficiency in the plea colloquy, nor sug-
    4                                                  No. 04-1276
    gests that Van Patten’s attorney’s participation by tele-
    phone interfered in any way with his ability to communi-
    cate with his attorney about his plea.” Accordingly, the
    appellate court rejected Van Patten’s right-to-counsel
    claim.1 The Wisconsin Supreme Court denied further
    review.
    Van Patten then brought his Sixth Amendment claim to
    the district court as a habeas petition under 28 U.S.C.
    § 2254. In his recommendation to the district court, the
    magistrate judge found that Connell’s telephonic appear-
    ance at the plea hearing had been “effective under Strick-
    land,” but “ineffective” under United States v. Cronic, 
    466 U.S. 648
    (1984).
    Cronic, which was decided on the same day as Strickland,
    recognizes several circumstances where the two-pronged
    Strickland test does not apply, circumstances “so likely to
    prejudice the accused that the cost of litigating their effect
    in a particular case is unjustified.” 
    Id. at 658.
    Cronic, not
    Strickland, applies where there has been a “complete denial
    of counsel”; where counsel has been “prevented from
    assisting the accused during a critical stage” of the prosecu-
    tion; where “counsel entirely fails to subject the prosecu-
    tion’s case to meaningful adversarial testing”; or under
    circumstances where “although counsel is available . . . the
    likelihood that any lawyer, even a fully competent one,
    could provide effective assistance is so small that a pre-
    sumption of prejudice is appropriate without inquiry into
    the actual conduct of the [proceeding].” 
    Id. at 659-60
    and
    1
    The state appellate court did acknowledge that Connell’s
    appearance by telephone violated Wis. Stat. § 967.08, which
    authorizes some proceedings to be conducted by phone but
    does not permit an attorney to appear by phone at a plea hearing.
    But the court said this “procedural” violation was “harmless
    error.”
    No. 04-1276                                                 5
    659 n.25. See also Hollenback v. United States, 
    987 F.2d 1272
    , 1275 (7th Cir. 1993) (recognizing Cronic as an “excep-
    tion” to Strickland’s two-part test). A Cronic violation can
    occur where the denial of assistance of counsel was either
    “[a]ctual or constructive.” 
    Strickland, 466 U.S. at 692
    . See
    also Siverson v. O’Leary, 
    764 F.2d 1208
    , 1217 (7th Cir.
    1985). Although he identified Cronic as the law governing
    Van Patten’s habeas petition, the magistrate judge
    believed—and recommended to the district judge (incor-
    rectly, as we will explain)—that the violation could be
    considered “harmless error.”
    Acting on the recommendation, the district court made
    two holdings that are difficult to reconcile. It endorsed
    the magistrate judge’s analysis that counsel’s failure to
    appear in person, albeit “harmless error,” was “a violation
    of Van Patten’s Sixth Amendment right to effective assis-
    tance of counsel” under Cronic. But the district court also
    concluded that the state appellate court had “properly
    identified and applied Strickland,” rather than Cronic, as
    the appropriate legal framework. (Under Strickland, it
    seems clear Van Patten would have no viable claim.)
    Thus, we must resolve two questions: Did the state
    court err in applying Strickland, rather than Cronic, when
    it decided Van Patten’s Sixth Amendment claim? If the
    state court did apply the wrong law and Van Patten was
    denied assistance of counsel under Cronic, did the dis-
    trict court err in applying a harmless-error analysis to
    defense counsel’s failure to appear in person at the plea
    hearing? We conclude that the answer to both questions
    is yes.
    Under the Antiterrorism and Effective Death Penalty Act
    (AEDPA), a federal court may grant habeas relief from a
    state court conviction if it finds the state court’s adjudica-
    tion of a constitutional claim “resulted in a decision that
    was contrary to, or involved an unreasonable application of,
    clearly established federal law, as determined by the
    6                                                      No. 04-1276
    Supreme Court.” 28 U.S.C. § 2254(d)(1). A state court
    decision is “contrary to” Supreme Court precedent “if the
    state court arrives at a conclusion opposite to that reached
    by [the Supreme] Court on a question of law” or “if the state
    court confronts facts that are materially indistinguishable
    from a relevant Supreme Court precedent and arrives at a
    result opposite to [that of the Supreme Court].” Williams v.
    Taylor, 
    529 U.S. 362
    , 405 (2000).2 We review the district
    court’s decision rejecting Van Patten’s habeas petition de
    novo. Searcy v. Jaimet, 
    332 F.3d 1081
    , 1087 (7th Cir. 2003).
    The Sixth Amendment’s right-to-counsel guarantee
    recognizes “the obvious truth that the average defendant
    does not have the professional legal skill to protect himself
    2
    The state argues that because the Supreme Court has never
    decided a case involving counsel’s participation in a plea hear-
    ing by telephone, the state appellate court’s application of
    Strickland to this case did not “result[ ] in a decision that was
    contrary to . . . clearly established federal law,” and thus a federal
    court may not grant habeas relief. This argument misapprehends
    the AEDPA regime. “Factual contexts of cases may be regarded as
    ‘materially indistinguishable’ because their legal implications are
    clearly the same, notwithstanding that the facts themselves are
    significantly different.” RANDY HERTZ & JAMES S. LIEBMAN,
    FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 1439 n.24
    (4th ed. 2001) (citing Ramdass v. Angelone, 
    530 U.S. 156
    , 180
    (O’Connor, J., concurring)). One of the most obvious ways a state
    court may render a decision “contrary to” the Supreme Court’s
    precedents is when it sets forth the wrong legal framework. See
    
    Williams, 529 U.S. at 397-98
    (state court’s decision was contrary
    to clearly established law because it mischaracterized the
    appropriate rule for evaluating defendant’s Sixth Amendment
    claim). Moreover, a state court decision is also an “unreasonable
    application of ” Supreme Court precedent if it “refuses to extend
    [an established legal] principle to a new context where it should
    apply.” 
    Id. at 407.
    Thus, if the state court got its decision wrong
    because it identified and applied the wrong precedent—as we will
    explain it did in this case—a federal court may award collateral
    relief.
    No. 04-1276                                                 7
    when brought before a tribunal with power to take his life
    or liberty.” Johnson v. Zerbst, 
    304 U.S. 458
    , 462-63 (1938).
    “Of all the rights that an accused person has, the right to be
    represented by counsel is by far the most pervasive for it
    affects his ability to assert any other rights he may have.”
    
    Cronic, 466 U.S. at 654
    (citation omitted). Thus, a defen-
    dant requires an attorney’s “guiding hand” through every
    stage of the proceedings against him. Powell v. Alabama,
    
    287 U.S. 45
    , 53 (1932); 
    Cronic, 466 U.S. at 658
    . It is well-
    settled that a court proceeding in which a defendant enters
    a plea (a guilty plea or, as here, a plea of no contest) is a
    “critical stage” where an attorney’s presence is crucial
    because “defenses may be . . . irretrievably lost, if not then
    and there asserted.” Hamilton v. Alabama, 
    368 U.S. 52
    , 54
    (1961). See also White v. Maryland, 
    373 U.S. 59
    , 60 (1963);
    United States ex rel. Thomas v. O’Leary, 
    856 F.2d 1011
    ,
    1014 (7th Cir. 1988). Indeed, with plea bargaining the norm
    and trial the exception, for most criminal defendants a
    change of plea hearing is the critical stage of their prosecu-
    tion.
    In deciding whether to dispense with the two-part
    Strickland inquiry, a court must evaluate whether the
    “surrounding circumstances make it unlikely that the
    defendant could have received the effective assistance of
    counsel,” 
    Cronic, 466 U.S. at 666
    , and thus “justify a
    presumption that [the] conviction was insufficiently reliable
    to satisfy the Constitution,” 
    id. at 662.
    In this case, al-
    though the transcript shows that the state trial judge did
    his best to conduct the plea colloquy with care, the arrange-
    ments made it impossible for Van Patten to have the
    “assistance of counsel” in anything but the most perfunctory
    sense. Van Patten stood alone before judge and prosecutor.
    Unlike the usual defendant in a criminal case, he could not
    turn to his lawyer for private legal advice, to clear up
    misunderstandings, to seek reassurance, or to discuss any
    last-minute misgivings. Listening over an audio connection,
    8                                                No. 04-1276
    counsel could not detect and respond to cues from his
    client’s demeanor that might have indicated he did not
    understand certain aspects of the proceeding, or that he
    was changing his mind. If Van Patten wished to converse
    with his attorney, anyone else in the courtroom could
    effectively eavesdrop. (We assume the district attorney
    would balk if he were expected to conduct last-minute
    consultations with his staff via speakerphone in open court,
    “on the record,” with the defendant taking in every word.)
    No advance arrangements had been made for a private line
    in a private place, and even if one could “perhaps” have
    been provided, it would have required a special request by
    Van Patten and, apparently, a break in the proceedings.
    In short, this was not an auspicious setting for someone
    about to waive very valuable constitutional rights.
    Considering all the ways he was foreclosed from receiving
    an attorney’s guidance and support at his hearing, it
    is clear to us that Van Patten’s case must be resolved under
    Cronic. Thus, the state appellate court arrived at a decision
    contrary to the Supreme Court’s precedent when it analyzed
    the case under Strickland (indeed, the state court’s opinion
    never even acknowledges Cronic), and the district court
    erred when it endorsed that decision. Properly analyzed,
    Van Patten’s claim is not a complaint about his attorney’s
    effectiveness; rather, it points to a structural defect in the
    proceedings against him. When a defendant is denied
    assistance of counsel at a stage where he must assert or
    lose certain rights and defenses, the error “pervade[s] the
    entire proceeding.” Satterwhite v. Texas, 
    486 U.S. 249
    , 256
    (1988) (citing White and Hamilton). See also Bell v. Cone,
    
    535 U.S. 685
    , 695-96 (2002) (a trial is “presumptively
    unfair . . . where the accused is denied the presence of
    counsel at ‘a critical stage’ ” which holds “significant
    consequences for the accused”) (citations omitted); 
    Cronic, 466 U.S. at 659
    (same).
    No. 04-1276                                                  9
    Van Patten does not allege, for example, that his attorney
    botched his defense through bad legal judgments, or
    misinformed him of the ramifications of his plea. Rather,
    the arrangements under which the hearing was con-
    ducted, with defendant and counsel unable to see or
    communicate privately with each other, prevented Van
    Patten from receiving the assistance that the Sixth Amend-
    ment guarantees. However acceptable an attor-
    ney’s performance may otherwise be by Strickland stan-
    dards, it is beside the point if the attorney is prevented by
    the design of the proceeding from providing the full bene-
    fit of his skills when his client needs them most. Al-
    though the record may make the proceeding appear to have
    been routine and proper, we cannot know what Van Patten
    might have done had he been treated like any
    other defendant with counsel at his side. Under such unique
    circumstances, a plea cannot meet the constitutional
    requirement that it be intelligent and voluntary. See Brady
    v. United States, 
    397 U.S. 742
    , 749 (1970) (voluntariness of
    a plea “can be determined only by considering all of the
    relevant circumstances surrounding it”); 
    White, 373 U.S. at 60
    (when defendant enters a plea outside the presence of
    counsel, “we do not stop to determine whether prejudice
    resulted: ‘Only the presence of counsel could have enabled
    [the] accused to know all the defenses available to him and
    to plead intelligently.’ ” (quoting 
    Hamilton, 368 U.S. at 55
    )).
    Getting the attorney on speakerphone may have been
    better than nothing. But the Sixth Amendment re-
    quires more than “formal compliance” with its guaran-
    tees. 
    Cronic, 466 U.S. at 654
    (citation omitted). See also
    Childress v. Johnson, 
    103 F.3d 1221
    , 1231 (5th Cir. 1997)
    (applying Cronic where defense counsel in a plea hearing
    functioned as little more than “standby counsel”). And so we
    think it problematic to treat assistance of counsel as
    a formality to be overcome through creative use of tech-
    nology so that everyone can keep their calendars in order.
    10                                               No. 04-1276
    The state argues against applying Cronic here because
    plea hearings do not involve presentation of evidence and,
    in the state’s view, simply formalize bargains previously
    negotiated by the prosecution and defense. “[D]efense
    counsel’s adversarial-testing role essentially disappears” in
    a plea hearing, the state reasons in its brief, and
    thus a telephone appearance is good enough. But the state’s
    conception of counsel’s role is too limited.
    Defense counsel should be fully engaged at a plea hearing
    no less than at trial because in both settings, “the accused
    [is] confronted with both the intricacies of the law and the
    advocacy of the public prosecutor.” 
    Cronic, 466 U.S. at 654
    (quoting United States v. Ash, 
    413 U.S. 300
    , 309 (1973)). See
    also 
    Childress, 103 F.3d at 1227
    (“A defendant is constitu-
    tionally entitled to the active assistance of counsel at a plea
    hearing.”) (emphasis added). Defense counsel must also
    ensure that the prosecutor fully performs his end of what-
    ever deal has been struck. See Santobello v. New York, 
    404 U.S. 257
    , 262 (1971) (“[W]hen a plea rests in any significant
    degree on a promise or agreement of the prosecutor . . . such
    promise must be fulfilled.”) By the state’s logic, if a plea
    hearing is merely pro forma, the state could be represented
    as effectively by a clerk or paralegal as by one of its profes-
    sional prosecutors. But however routine such hearings
    may have become, the Supreme Court has not revised its
    view that entering a guilty plea (or its equivalent, as here,
    a plea of no contest) is “a grave and solemn act,” 
    Brady, 397 U.S. at 748
    , to be treated, like all phases of the criminal
    process, as a “confrontation between adversaries,” 
    Cronic, 466 U.S. at 657
    .
    Physical presence is necessary not only so that coun-
    sel can keep an eye on the client and the prosecutor, but
    so the court can keep an eye on counsel. Even if a private
    line had been arranged for Van Patten to speak with his
    attorney, we would regard long-distance lawyering in
    critical-stage proceedings as inadequate to safeguard
    No. 04-1276                                                     11
    effective assistance of counsel and the integrity of the
    judicial process. This point underscores why Cronic, not
    Strickland, applies here.
    Over a phone line, it would be all too easy for a lawyer
    to miss something. For example, she might prejudice her
    client by failing to make some important point during the
    proceedings and later claim it was a tactical decision (in
    which case Strickland mandates a large benefit of the
    doubt), when in reality she wasn’t paying attention. Or an
    attorney might realize he had neglected to inform the client
    of some crucial piece of information but be tempted to let it
    pass rather than broadcasting the issue to everyone in the
    room. Cf. Ivy v. Caspari, 
    173 F.3d 1136
    (8th Cir. 1999)
    (defendant’s guilty plea was not knowing and voluntary
    where counsel had failed to provide adequate explanation
    of elements of offense and other crucial information). On
    collateral review, courts can rarely assess an attorney’s
    performance from the printed record alone. Even assuming
    that counsel could hear and understand every word (and
    how many people who have experienced speakerphones or
    conference calls would stake their liberty on that assump-
    tion?),3 the client or the judge might never know whether
    the defense attorney was hanging on every word, reading
    documents in another case, surfing the web, or falling
    asleep.4 Cf. Burdine v. Johnson, 
    262 F.3d 336
    (5th Cir.
    2001) (en banc), cert. denied sub nom. Cockrell v. Burdine,
    3
    At the plea hearing, the judge instructed the defendant: “Mr.
    Van Patten, we are going to put your attorney on the
    speakerphone, so I want you standing up a little closer to
    make sure he can hear you. I think you will be able to hear
    him, but sometimes they cannot hear you.”
    4
    Even if we assume that busy attorneys never do such things
    during conference calls with their clients, what might we be asked
    to accept next? Offshore defense-attorney call centers? Letting the
    defendant confer with counsel via Blackberry?
    12                                              No. 04-1276
    
    535 U.S. 1120
    (2002) (under Cronic, defendant was denied
    assistance of counsel when his attorney repeatedly dozed
    during trial).
    Having decided that the circumstances surrounding
    Van Patten’s hearing justify a presumption of prejudice
    under Cronic, we must address the district court’s find-
    ing that defense counsel’s constructive absence was none-
    theless harmless error.
    In his recommendation, the magistrate judge relied on
    two decisions, United States v. Morrison, 
    946 F.2d 484
    , 503
    (7th Cir. 1991), and Siverson v. O’Leary, 
    764 F.2d 1208
    (7th
    Cir. 1985), where we said counsel’s absence in some circum-
    stances might be presumptively prejudicial yet still be
    subject to a harmless-error analysis. In Siverson, a state
    habeas case, the defendant’s counsel was absent when the
    jury verdict was returned. In Morrison, a lengthy multi-
    defendant federal drug conspiracy trial, the lawyer for one
    of the defendants was excused (with his client’s permission)
    from attending three court sessions that did not involve the
    offering of evidence against the defendant. We viewed these
    situations as trial errors subject to a harmless-error
    analysis.
    But Siverson and Morrison also recognized that harmless-
    error inquiry would not apply where the denial of counsel
    contaminated the entire proceeding. See 
    Morrison, 946 F.2d at 503-04
    ; 
    Siverson, 764 F.2d at 1217
    n.6. This distinction
    is underscored by several Supreme Court decisions, which
    have made clear that while some Sixth Amendment viola-
    tions are susceptible to harmless-error analysis, see Arizona
    v. Fulminante, 
    499 U.S. 279
    , 306-07 (1991) (citing exam-
    ples), “structural defects” are not, 
    id. at 309.
    See also
    Penson v. Ohio, 
    488 U.S. 75
    , 88 (1988) (denial of counsel
    under the meaning of Cronic “can never be considered
    harmless error”); 
    Satterwhite, 486 U.S. at 256-57
    (explain-
    ing the difference between trial error and “violations that
    No. 04-1276                                                 13
    pervade the entire proceeding”); Patrasso v. Nelson, 
    121 F.3d 297
    , 305 (7th Cir. 1997) (remanding for grant of a
    habeas petition without harmless-error analysis after
    finding attorney’s performance at defendant’s sentencing
    hearing was “so lacking that it invites application of Cronic
    rather than Strickland”). Because the physical absence of
    counsel from a hearing where a defendant gives up his most
    valuable constitutional rights and admits his guilt to a
    serious charge is a structural defect, the district court erred
    in finding that the error could be analyzed under a harm-
    less standard.
    Although counsel-by-conference call probably could not
    have been imagined by the Supreme Court in 1938, it
    is worth remembering that Justice Sutherland in Powell—
    as well as Justice Stevens in Cronic more than a half-
    century later—invoked the metaphor of the “guiding
    hand” of counsel which a defendant requires at every
    step. Similarly, we have observed that “[t]he Sixth Amend-
    ment . . . guarantees more than just a warm body to stand
    next to the accused.” 
    Thomas, 856 F.2d at 1015
    . In this
    case, Van Patten didn’t get even a warm body.
    The judgment of the district court is REVERSED and the
    case is REMANDED for the entry of an order granting the
    petition for a writ of habeas corpus. On the subsequent
    remand to the Circuit Court for Shawano County, the
    proceedings against Mr. Van Patten can resume with a plea
    of not guilty in place.
    14                                        No. 04-1276
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—1-24-06