James Smith, Jr. v. Greg Grams ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2302
JAMES A. S MITH,
Petitioner-Appellant,
v.
G REGORY G RAMS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 375—John C. Shabaz, Judge.
A RGUED D ECEMBER 5, 2008—D ECIDED M AY 15, 2009
Before R IPPLE, K ANNE, and T INDER, Circuit Judges.
K ANNE , Circuit Judge. Appellant James Smith is
currently serving a fifteen-year sentence for a 1994
armed robbery conviction in the circuit court of Milwau-
kee County, Wisconsin. In 2007, Smith petitioned the
United States District Court for the Western District of
Wisconsin for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In his petition, Smith claimed, inter alia,
that he was denied his Sixth Amendment right to
counsel during his state jury trial. The district court
2 No. 07-2302
dismissed the petition. We find merit in Smith’s claims
and remand to the district court with orders to issue
the writ.
I. B ACKGROUND
Smith was arrested in early 1994 on a charge of armed
robbery. Following his arrest, Wisconsin’s Office of the
State Public Defender appointed Smith’s first counsel,
Assistant Public Defender Steven Sargent. At a status
hearing held March 23, 1994, Sargent informed the court
that Smith desired a new attorney. Smith, who was
present at the hearing, told the court that he was not
interested in another lawyer from the Public Defender’s
office. Smith said that he wanted the Public Defender to
appoint Thomas Marola, an attorney in private practice,
to handle his case. Marola had defended Smith at a
recent trial in which a jury acquitted Smith of both
sexual assault and armed robbery.
If the Public Defender’s office would not appoint
Marola, Smith insisted that he would represent himself.
The court conducted a cursory examination of Smith,
inquiring about his education and experience with the
judicial system. The court then concluded the hearing,
leaving both representation options open: “[W]e can
work it out with the Public Defender’s office, however
they want to do it. You can represent yourself, or they’ll
appoint a lawyer for you.” At the March 23 hearing,
Smith also reiterated a previous request for a speedy trial.
A week later, on March 31, 1994, the court held a
status hearing in Smith’s absence at which Thomas
No. 07-2302 3
Wilmouth, Smith’s second appointed counsel, entered
his appearance. The court set the trial date for May 25,
1994, which it later changed to May 31.
The next status hearing occurred on May 4, 1994, with
both Smith and Wilmouth present. At that hearing,
Wilmouth moved to withdraw as Smith’s attorney, a
sentiment echoed by Smith, who also requested new
representation. Wilmouth said that he had spoken with
the Wisconsin Public Defender’s office and “they
indicated at this point that they have a mind [to appoint
a third lawyer].” The court granted the motion. The
court then allowed Smith to be heard pro se on a
motion related to his bond, but it continued to indicate
its expectation that Smith would be represented by
counsel at trial: “I’ll grant the motion Mr. Wilmouth on the
condition . . . that a new attorney should be appointed as
quickly as possible. . . . [W]e can see who the new lawyer
is and when he’ll be ready to go [to] trial.”
The court held its final pretrial hearing on May 10, 1994.
Smith appeared without counsel, and the court informed
him that the Public Defender’s office had refused to
appoint a third attorney. Smith claimed this was the
first he had heard of this development, but a letter to
this effect was apparently sent to Wilmouth, his former
lawyer. Smith reiterated his desire for legal counsel. After
more discussion, Smith inquired about his options, to
which the court responded, “Well, . . . you can represent
yourself.” Smith reminded the court that at the May 4
hearing, Wilmouth had said that the Public Defender’s
office would appoint Smith another lawyer.
4 No. 07-2302
Later in the hearing, the court conducted another brief
examination of Smith, asking essentially the same ques-
tions that it had at the March 23 hearing. The court
learned that Smith had graduated from high school and
received some vocational training. Smith also informed
the court that he had been through at least one crim-
inal trial, the aforementioned proceeding during which
Attorney Marola had represented him. Smith noted that
he had required the help of other inmates to prepare
various motions in the present case. Near the end of the
hearing, Smith again expressed his desire for representa-
tion, saying, “I would like an attorney, but if I can’t
hire one, I guess I will be representing myself.”
The first day of Smith’s trial came on May 31, 1994. From
the beginning, Smith made it clear that he wished to be
represented by counsel. After the court called the case,
Smith immediately said, “The Court can appoint me an
attorney.” The court declined Smith’s request and gave
Smith an option. He could waive his right to a speedy
trial—a demand Smith had made on March 14 and re-
newed during his March 23 hearing—and adjourn that
day’s proceedings, or he could continue in a pro se fash-
ion. Smith declined to waive his speedy trial right, and the
court said, “Okay, we’ll go to trial.”
Smith continued to assert his desire for counsel in the
minutes preceding voir dire, saying: “I don’t think
it’s right. I asked for an attorney before, the Court ignored
me . . . . No way I can defend myself because I don’t
know anything about the law.”
Immediately prior to opening statements, Smith made
a motion to dismiss based on the denial of his right to
No. 07-2302 5
counsel. In support of his motion, Smith said the
following: “The defendant can’t possibly defend hisself
[sic] in a court of law. . . . Defendant is unable to employ
counsel and is unable and incapable of making his
own defense because of ignorance, feeblemindedness,
illiteracy, or the lack thereof.” Despite Smith’s protesta-
tions, the court conducted the trial with Smith acting pro se.
On June 3, the jury found Smith guilty of armed robbery
in violation of Wis. Stat. § 943.32(1)(a)-(2). Six weeks
later, on July 14, the court sentenced Smith to fifteen
years in prison. In the years since, Smith has traveled a
long and twisted road through the Wisconsin court
system, the details of which are largely irrelevant to the
present appeal.1
In a decision dated August 29, 2006, the Wisconsin Court
of Appeals denied Smith’s direct appeal. The court re-
counted Smith’s inconsistent behavior during the series
of hearings we discussed above, where Smith sometimes
requested appointed counsel and at other times asserted
his right to defend himself. The court highlighted the
1
The Wisconsin Court of Appeals denied Smith’s first direct
appeal on May 29, 1996. Seven years later, however, the Wiscon-
sin Court of Appeals reinstated Smith’s direct appeal rights
after it concluded that during Smith’s 1996 appeal, which
Smith had filed pro se, Smith had not knowingly and voluntarily
waived his right to postconviction/appellate counsel. As we
will discuss, in 2006, the Wisconsin Court of Appeals issued
a decision on Smith’s renewed appeal that now becomes the
basis for our review of Smith’s habeas corpus petition.
6 No. 07-2302
choice presented to Smith by the trial court—either waive
his right to trial counsel and proceed pro se or waive his
right to a speedy trial and adjourn the proceedings—and
Smith’s decision to proceed with the trial. The result,
said the court, was that Smith, “by asserting mutually
exclusive constitutional rights (one of which was clearly
more important to him than the other), . . . waived his
right to counsel by operation of law.” The court sum-
marized its conclusions as follows: “By knowingly choos-
ing the frequently inconsistent courses of action he did
(by repeatedly requesting to discharge counsel and ap-
point successor counsel at the eleventh hour, by seeking
to proceed pro se, and by refusing to waive his speedy
trial demand), Smith essentially elected to defend him-
self at his jury trial.”
Smith’s journey has now crossed over into the federal
court system, where he filed a petition in the United States
District Court for the Western District of Wisconsin
seeking a writ of habeas corpus. See 28 U.S.C. § 2254. In
the portion of his petition at issue in this appeal, Smith
argued that he was denied his Sixth Amendment right
to counsel at trial and was therefore being held in viola-
tion of the United States Constitution.
In an order issued on March 28, 2007, the district court
dismissed the petition after concluding that the Wis-
consin Court of Appeals did not base its decision on an
unreasonable determination of the facts or an unreason-
able application of United States law. This appeal
follows from that order.
No. 07-2302 7
II. A NALYSIS
We are presented with two issues. First, the State con-
tests the time and manner in which Smith filed his notice
of appeal and claims that we are left without jurisdiction.
Second, if we have jurisdiction, we must decide, under
our deferential standard of review, whether Smith was
denied his right to counsel at trial.
A. This Court’s Jurisdiction on Appeal
The first issue that we must address is whether we
possess jurisdiction to hear this appeal. The State con-
tends that Smith did not appeal the district court’s order
of March 28, 2007, in a timely manner. For the
following reasons, we disagree and conclude that we
have jurisdiction.
The Federal Rules of Appellate Procedure dictate that
a party wishing to appeal an adverse judgment or order
must file a notice of appeal with the clerk of the district
court within thirty days of the entry of the contested
judgment or order. Fed. R. App. P. 4(a)(1)(A). Smith made
three filings in 2007 that are potentially relevant to our
analysis, one on each of the following dates: April 2,
April 20, and June 4. Neither Smith nor the State
disputes that the notice of appeal filed by Smith on June 4,
2007, was untimely. If that were Smith’s only filing,
we would have no choice but to dismiss the case for lack
of jurisdiction. See Remer v. Burlington Area Sch. Dist.,
205 F.3d 990, 994 (7th Cir. 2000) (“[T]he timely filing of
a notice of appeal is both mandatory and jurisdictional,
8 No. 07-2302
and a notice filed too late will preclude appellate juris-
diction.” (quotations omitted)); United States ex rel. Burton
v. Greer, 643 F.2d 466, 469 (7th Cir. 1981). Smith’s two
additional filings, however, both came within Rule 4’s
thirty-day window, and Smith now contends that one
or both of these served as notices of his appeal, a position
the Wisconsin Attorney General contests.
Acting pro se, Smith made the first of these filings
with the Western District of Wisconsin on April 2, 2007. In
his letter, Smith sought to appeal the district court’s
March 28 order directly to the Supreme Court of the United
States. In support, Smith cited Supreme Court Rule 18,
which governs the appropriate procedure “[w]hen a
direct appeal from a decision of a United States district
court is authorized by law.” Sup. Ct. R. 18(1). In a letter
dated May 15, 2007, the Supreme Court returned the
notice of appeal to the district court, stating that direct
appeal of a district court order is permitted only when
issued by a three-judge district court panel. See 28 U.S.C.
§ 1253. It was after receiving the Supreme Court’s
response that Smith filed his untimely notice of appeal to
this court on June 4, 2007.
In the interim period between filing his notice of
appeal to the Supreme Court and receiving the Court’s
response, Smith, again acting pro se, made a second
filing. He filed a document, captioned “Circuit Rule 52
Certification of Question of State Law,” with our court
on April 20, 2007. This submission, spanning thirty-five
handwritten pages, appears to detail every perceived
wrong he endured in the then-thirteen years since the
date of the armed robbery.
No. 07-2302 9
The question we must answer is one with which we
are familiar, particularly when confronted with a pro se
party: whether either of the filings made within the thirty-
day deadline is sufficient to serve as a valid notice of
appeal. Generally, a notice of appeal must (1) contain the
name of the party or parties taking the appeal; (2) desig-
nate the judgment or order, or part thereof, being
appealed; and (3) name the court to which the appeal is
being taken. Fed. R. App. P. 3(c)(1).
When a party proceeds pro se, however, we will, if
possible, liberally construe his actions to find Rule 3’s
requirements satisfied. Smith v. Barry, 502 U.S. 244, 248
(1992); see, e.g., Listenbee v. City of Milwaukee, 976 F.2d
348, 350-51 (7th Cir. 1992) (recognizing a party’s motion
for an extension of time to file a notice of appeal as the
necessary notice of appeal); Scherer v. Kelley, 584 F.2d 170,
174 (7th Cir. 1978) (noting that pro se notices of appeal “are
entitled to a liberal construction where the intent of the
appellant is apparent and the adverse party is not preju-
diced”). Our obligation to construe liberally Rule 3’s
dictates, however, does not excuse true noncompliance,
which remains fatal to any appeal. Barry, 502 U.S. at 248.
In Barry, 502 U.S. 244, the Supreme Court held that a
pro se party’s appellate brief functioned as his notice of
appeal. The Court stated that when a filing is “ ‘technically
at variance’ ” with Rule 3’s requirements, a court should
construe the filing as a valid notice of appeal if it is the
“ ‘functional equivalent of what the rule requires.’ ” Id. at
248 (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312,
317 (1988)). The Court then focused its discussion on
10 No. 07-2302
the purpose of Rule 3, which it said was to provide
“sufficient notice to other parties and the courts.” Id.; see
also Torres, 487 U.S. at 318; United States v. Musa, 946
F.2d 1297, 1301 (7th Cir. 1991). The Court said that “[i]f a
document filed within the time specified by Rule 4
gives the notice required by Rule 3, it is effective as a
notice of appeal.” Barry, 502 U.S. at 248-49.
With these general principles in mind, we turn first to
Smith’s April 2 filing with the district court, in which
he sought direct review by the Supreme Court of the
district court’s March 28 order. This filing contained
both the name of the party taking the appeal and desig-
nated the order being appealed, thus satisfying Rule 3(c)’s
first two requirements. See Fed. R. App. P. 3(c)(1)(A)-(B).
The only variance from Rule 3 was in the name of the
court to which the appeal was being taken. See id.
3(c)(1)(C). Instead of seeking appeal to this court as
he should have, Smith sought to appeal directly to the
Supreme Court. This was a non-fatal error.
When a party may appeal only to a certain court, we
have recognized the validity of a notice of appeal that
contains no mention whatsoever of the court to which the
case is being taken; we infer that the party intended to
appeal to the only available forum. See Ortiz v. John O.
Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996).2 Here, as in
2
In Ortiz, we noted that certain situations would prevent the
application of this general rule, 94 F.3d at 1125, and one such
situation is where a direct appeal to the Supreme Court is
(continued...)
No. 07-2302 11
Ortiz, Smith had only one available appellate forum. The
fact that he did not understand this constraint, as evi-
denced by his erroneous attempt to appeal to the
Supreme Court, is of little consequence.
Further, we have held that a notice of appeal was valid
even when, as here, it designated the wrong court for
appeal. See Musa, 946 F.2d at 1301. In Musa, the
appellant, acting with the assistance of counsel, filed a
timely notice of appeal, but incorrectly designated as
the appellate court the United States Court of Appeals
for the Eighth Circuit. Id. We found that this flaw did not
prevent the notice of appeal from fairly notifying both
the opposing party and district court of the appellant’s
intent to appeal, and we held that the notice of appeal
was therefore sufficient. Id.The State attempts to distinguish the two cases. It
argues that, unlike in Ortiz, Smith’s intent to seek review
in the Supreme Court was obvious, making it unnecessary
to infer the court to which Smith intended to appeal.
And unlike in Musa, the State contends, Smith made no
mistake in deciding the court to which he appealed;
he intentionally attempted to bypass this court, thus
rendering his notice of appeal invalid.
2
(...continued)
available under 28 U.S.C. § 1253, Musa, 946 F.2d at 1301. Despite
the invocation of § 1253 in the Supreme Court’s response to
Smith’s attempted appeal, however, such a case is not now
before us. Smith’s misguided effort to appeal to the Supreme
Court does not change the fact that this court was then, and
is now, the only court to which he could appeal.
12 No. 07-2302
The State’s arguments, which hinge largely on Smith’s
subjective intentions, are unconvincing. In Barry, the
Supreme Court, when discussing whether the peti-
tioner’s appellate brief was the functional equivalent of
a notice of appeal, downplayed the petitioner’s inten-
tions: “[T]he notice afforded by a document, not the
litigant’s motivation in filing it, determines the docu-
ment’s sufficiency as a notice of appeal.” 502 U.S. at 248.
We find the Court’s sentiments applicable in this case
as well, and we decline to delve into Smith’s subjective
intentions when he filed his April 2 notice of appeal to
the Supreme Court. In Musa, we excused a mistaken
appeal to the Eighth Circuit, even though that mistake
was made by a practicing attorney, not a pro se party.
946 F.2d at 1301. It would be incongruous not to provide
at least that same level of deference to a party acting
without the benefit of counsel.
As the Court instructed in Barry, we return to the pur-
pose of a notice of appeal, which is to provide fair notice
to both the opposing party and the district court. 502
U.S. at 248; see also Musa, 946 F.2d at 1301. Smith unques-
tionably provided adequate notice in this case. That
Smith wished to appeal the district court’s order was
apparent. Equally as apparent to a party well-versed in
the law, such as the Wisconsin Attorney General, is that
this appeal had to be taken in the only court in which
such an appeal could stand—the United States Court of
Appeals for the Seventh Circuit. As a result, the State
cannot claim to have been prejudiced in any regard. Given
the liberal construction that we generally owe a pro se
party’s filings, we hold, as we did in Ortiz and Musa, that
No. 07-2302 13
Smith’s attempted appeal to the Supreme Court, timely
filed with the district court, was the “functional equiva-
lent” of a proper notice of appeal. It is therefore unneces-
sary for us to consider whether Smith’s second filing
would have also served as a functional notice of appeal
under Rule 3. Having determined that we have jurisdic-
tion to hear this appeal, we now turn to the merits of
Smith’s petition.
B. Smith’s Sixth Amendment Right to Trial Counsel
Under the Antiterrorism and Effective Death Penalty
Act (AEDPA), we may grant a petition for habeas relief
from a state court judgment only in one of two limited
circumstances: if the state court decision (1) was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States;” or (2) “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). In conducting this deferential evalua-
tion, we presume that the state court’s factual determina-
tions are correct, a presumption the petitioner may
rebut only by clear and convincing evidence. Id.§ 2254(e)(1). As the petitioner, Smith bears the burden
of showing that the state court’s finding of fact or its ap-
plication of federal law was not only erroneous, but
unreasonable. See Waddington v. Sarausad, 129 S. Ct. 823,
831 (2009); Sturgeon v. Chandler, 552 F.3d 604, 609 (7th
Cir. 2009). We review the district court’s legal conclusions
de novo and its factual findings for clear error. Sturgeon,
552 F.3d at 609.
14 No. 07-2302
The Sixth Amendment of the United States Constitution
guarantees a party engaged in a criminal prosecution
the assistance of counsel. U.S. Const. amend. VI. The
Due Process Clause of the Fourteenth Amendment incor-
porated this right, making it applicable to state criminal
prosecutions as well. See U.S. Const. amend. XIV, § 1;
Danforth v. Minnesota, 128 S. Ct. 1029, 1035 (2008) (citing
Gideon v. Wainwright, 372 U.S. 335 (1963)).
Although the Constitution provides the right to the
assistance of counsel, it does not permit a state to force
unwanted counsel upon a party. See Faretta v. California,
422 U.S. 806, 820 (1975) (“To thrust counsel upon the
accused, against his considered wish, thus violates the
logic of the [Sixth] Amendment.”). Instead, the Supreme
Court has interpreted the Sixth Amendment as con-
taining an implied right to waive counsel and represent
oneself. See id. at 821. To be valid, a defendant’s waiver
of the right to counsel must be made knowingly and
intelligently. Id. at 835; see also Johnson v. Zerbst, 304
U.S. 458, 464 (1938).
Notwithstanding the right to represent oneself, how-
ever, courts have continued to recognize the over-
whelming advantages that an accused gains from a law-
yer’s guidance. See, e.g., Faretta, 422 U.S. at 834 (“It is
undeniable that in most criminal prosecutions defendants
could better defend with counsel’s guidance than by their
own unskilled efforts.”); United States v. Moya-Gomez, 860
F.2d 706, 732 (7th Cir. 1988) (suggesting that a court
inform a defendant “that it would be unwise not to
No. 07-2302 15
accept the assistance of counsel”).3 For this reason, courts
are hesitant to find a waiver of the right to counsel and
“will indulg[e] every reasonable presumption against
the waiver.” United States v. Belanger, 936 F.2d 916, 919
(7th Cir. 1991) (alteration in original) (quotations omitted);
see also Von Moltke v. Gillies, 332 U.S. 708, 723 (1948) (Black,
J., plurality opinion) (noting “the strong presumption
against waiver of the constitutional right to counsel” and
“the serious and weighty responsibility upon the trial
judge of determining whether there is an intelligent and
competent waiver by the accused”); Johnson, 304 U.S. at
464 (“[W]e do not presume acquiescence in the loss of
fundamental rights.” (quotations omitted)). This is par-
ticularly true when evaluating waiver of trial counsel,
which is even more fiercely protected than the right to
counsel at other stages of a criminal proceeding. Patterson
v. Illinois, 487 U.S. 285, 298 (1988) (comparing counsel’s
role at various stages in criminal prosecutions and com-
menting on “the enormous importance and role that
an attorney plays at a criminal trial”).
The Wisconsin Court of Appeals’s opinion identified
two separate grounds in support of its conclusion that
Smith waived his right to trial counsel. First were
Smith’s “inconsistent courses of action,” in which Smith
3
See also Powell v. Alabama, 287 U.S. 45, 69 (1932) (“Even the
intelligent and educated layman has small and sometimes no
skill in the science of law. . . . He lacks both the skill and
knowledge adequately to prepare his defense, even though
he have a perfect one. He requires the guiding hand of counsel
at every step . . . . Without it, though he be not guilty, he
faces the danger of conviction . . . .”).
16 No. 07-2302
vacillated between utilizing appointed counsel and repre-
senting himself. The second ground was Smith’s refusal,
on the day of his trial, to adjourn proceedings, notwith-
standing his continued pleas for appointed assistance.
On appeal, Smith contends that this decision by the
Wisconsin Court of Appeals was both an unreasonable
application of clearly established federal law and an
unreasonable determination of facts. Upon review, we
agree and find that habeas relief is warranted.
In certain circumstances, a defendant may waive his
right to counsel through not only his words, but also his
conduct. United States v. Traeger, 289 F.3d 461, 475 (7th
Cir. 2002); see, e.g., United States v. Oreye, 263 F.3d 669, 670
(7th Cir. 2001); United States v. Irorere, 228 F.3d 816, 826
(7th Cir. 2000). This case is distinguishable from those
in which we have found such waiver, however. In Traeger,
for example, the trial court, at the time it permitted the
defendant to fire his lawyer, warned the defendant that
he would have to proceed pro se because the court would
not appoint him another attorney. 289 F.3d at 475. The
defendants received similar warnings in both Oreye, 263
F.3d at 670, and Irorere, 228 F.3d at 827-28. Unlike in those
cases, the Wisconsin trial court provided no such
warnings to Smith. In fact, at the time the court
permitted Smith to relieve his second attorney, it made
clear that it expected Smith to be represented by a new
attorney within a week.4
4
During the March 23 hearing at which Attorney Sargent
(continued...)
No. 07-2302 17
The Public Defender’s office provided Smith with two
lawyers, both of whom Smith terminated. But at the time
Smith rejected the second, Attorney Wilmouth, he did so
under the impression that he would be appointed new
counsel. At Smith’s May 4 hearing, Wilmouth, addressing
the court in Smith’s presence, said that he had spoken with
the Public Defender’s office, which had indicated its
intentions to appoint a third attorney to represent Smith.
The court, in fact, made its decision to grant Wilmouth’s
withdrawal contingent on another appointment: “I’ll
grant the motion Mr. Wilmouth on the condition . . . that
a new attorney should be appointed as quickly as possi-
ble.” The court then set another status hearing for the
following week, “so we can see who the new lawyer
is and when he’ll be ready to go to trial.”
It was not until a week later, at the May 10 hearing, that
Smith learned that the Public Defender would not
provide him another lawyer. When Smith asked about
his options, the court provided only one: self-representa-
tion. Smith reiterated throughout the May 10 hearing
his desire for counsel, a request that he reasserted on the
day of his trial, all to no avail. The court concluded that
4
(...continued)
sought to withdraw, the court told Smith that “the next attorney
you get will have to be the one that represent [sic] you
whether you like it or not.” This warning, however, was
negated by the court’s subsequent assurances to Smith, made
at later hearings, of a third appointed counsel, and we there-
fore refuse to consider it as part of our analysis.
18 No. 07-2302
Smith, having fired his previous two appointed lawyers,
had elected to proceed pro se. Yet when examined in
context, Smith had done nothing of the sort. Smith, rather
than electing to proceed pro se, had simply requested
another lawyer, a request he made with the court’s bless-
ing.
Thus, while it is often true that “[i]f you’re given
several options, and turn down all but one, you’ve
selected the one you didn’t turn down,” Oreye, 263 F.3d
at 670, the “several options” available to the defendant
must be clear, see id. at 671. Smith was never informed
of his options and, without such information, could not
possibly have made his decision with “eyes open,” as the
Supreme Court has required. See Faretta, 422 U.S. at 835.
It is unreasonable that such a decision, made in these
circumstances, could be interpreted as a knowing and
voluntary waiver of Smith’s Sixth Amendment right
to counsel.
Furthermore, we find no waiver in Smith’s election to
proceed to trial when the court gave him the choice of
adjourning the proceedings and waiving his right to a
speedy trial. Smith began the day of his trial by renewing
his request for appointed counsel. The court denied
Smith’s request and said, “It’s up to you, do you want to
go ahead with the trial or do you want to adjourn it?
Do you want to waive your right to a speedy trial?”
Smith replied simply, “No, I don’t want to waive
my right.”
The problem, again, is that the court gave Smith no real
options. True, Smith could have adjourned the day’s
No. 07-2302 19
proceedings, but what would he have gained? Immedi-
ately before giving Smith his “choice,” the court reiterated
that Smith would be appointed no further counsel, a
fact confirmed by the Public Defender’s office, which
sent a note to the judge just before voir dire indicating
that it would not provide Smith another attorney.
Such a Hobson’s choice is actually no choice at all. Under
these circumstances, we find it unreasonable to
recognize Smith’s election to proceed to trial as a
knowing and voluntary waiver of such an important
and fundamental right.
At the time Smith terminated Wilmouth, he did not
know, nor did the court warn him, that in so doing he
was electing to proceed pro se. This is in direct contra-
diction to Supreme Court precedent, which imposes “the
most rigorous restrictions on the information that must be
conveyed to a defendant, and the procedures that must
be observed.” Patterson, 487 U.S. at 298 (emphasis added).
The Supreme Court has not provided extensive direction
on the nature of the “rigorous restrictions . . . [and] proce-
dures” that a court must observe before finding valid
waiver of a defendant’s right to trial counsel. See Moya-
Gomez, 860 F.2d at 732; see also United States v. Hill, 252 F.3d
919, 925 (7th Cir. 2001) (expressing doubt “that any [proce-
dural] list can be mandated”). But see Von Moltke, 332
U.S. at 724 (Black, J., plurality opinion) (stating that a
valid waiver “must be made with an apprehension of the
nature of the charges, the statutory offenses included
within them, the range of allowable punishments there-
under, possible defenses to the charges and circumstances
20 No. 07-2302
in mitigation thereof, and all other facts essential to a
broad understanding of the whole matter”).
The Court has said, however, that a defendant “should
be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he
knows what he is doing and his choice is made with eyes
open.’ ” Faretta, 422 U.S. at 835 (quoting Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942)); see also
Belanger, 936 F.2d at 918-19 (suggesting that the judge
inform the defendant of the nature of the charged
crimes, possible sentences, and the difficulties that
accrue from acting as one’s own counsel); Moya-Gomez,
860 F.2d at 732 (recommending that a court tell a
defendant the difficulties of acting pro se and encourage
the defendant to accept counsel’s assistance); cf. Hill, 252
F.3d at 928 (eschewing the use of a “check-off list” so long
as it is clear that the defendant “understood his options”).
We remain mindful of the difficult position in which
the Sixth Amendment’s parallel rights to assistance of
counsel and self-representation can place a trial judge.
See Oreye, 263 F.3d at 672 (noting that a judge must
balance on a “razor’s edge” between the two Sixth Amend-
ment rights because “[i]f the judge exaggerates either
the advantages of being represented or the disadvantages
of self-representation, he will be accused of having put
his thumb on the scale”); United States v. Sandles, 23 F.3d
1121, 1127 (7th Cir. 1994).
Nonetheless, even the Supreme Court’s minimal guid-
ance makes it clear that the procedures followed by the
Wisconsin state trial court were inadequate to
No. 07-2302 21
demonstrate a knowing and voluntary waiver of Smith’s
right to trial counsel. As we have alluded to, the court, in
a series of interactions that one could only describe as
“cursory or by-the-way in nature,” Belanger, 936 F.2d at
918 (quotations omitted), never made any attempt to
ensure that Smith knew his various options and was
aware of the dangerous terrain into which he was
entering, nor to provide Smith with any guidance on
how best to navigate his treacherous course. The court’s
failure to ensure that Smith understood his options and
made an informed decision was a violation of federal law.
The Wisconsin Court of Appeals’s conclusion to the
contrary was unreasonable.
III. C ONCLUSION
For the reasons above, we conclude, first, that we have
jurisdiction on appeal. Second, we hold that the
Wisconsin Court of Appeals, in determining that Smith
knowingly and voluntarily waived his Sixth Amendment
right to assistance of counsel, made an unreasonable
determination of the facts and unreasonably applied
federal law. We R EVERSE the decision of the district court
and R EMAND with instructions to G RANT the petitioner’s
request for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254. If the State elects not to retry Smith
within 120 days, he shall be released from confinement.
5-15-09