Gregory Jean-Paul v. Timothy Douma

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3088
GREGORY JEAN-PAUL,
Petitioner-Appellant,
v.
TIMOTHY DOUMA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 12-C-697 — Patricia J. Gorence, Magistrate Judge.
____________________
ARGUED NOVEMBER 18, 2015 — DECIDED DECEMBER 31, 2015
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Gregory Jean-Paul, a Wisconsin pris-
oner, filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254 arguing that he did not knowingly and
intelligently waive his right to counsel on his direct criminal
appeal in state court. The district court denied relief. We
affirm the judgment because the state appellate court rea-
sonably concluded that his waiver was knowing and intelli-
gent.
2 No. 14-3088
I. Background
Jean-Paul was convicted in 2007 of state drug crimes and
sentenced to 13 years’ confinement and 12 years’ extended
supervision. He appealed, but vacillated on whether he
wanted to represent himself on appeal. In January 2008 he
talked with his appointed counsel, Patrick Donnelly.
Donnelly told his client that he intended to file a “no-merit
report,” see WIS. STAT. § 809.32, unless Jean-Paul wanted to
proceed pro se, in which case Donnelly would simply ask to
withdraw. Jean-Paul replied that he wanted to proceed
pro se. To confirm, Donnelly wrote to Jean-Paul, advising
him that if he signed and returned a “Statement of Decision
to Proceed Pro Se,” Donnelly would withdraw from Jean-
Paul’s appeal. Donnelly noted that “[t]he deadline for taking
action in your case is currently March 14, 2008.”
Two days later, Jean-Paul reconsidered. He told Donnelly
that instead of proceeding pro se, he wanted all “documents
concerning my case” sent to him so that he could “fully and
thoroughly respond to the No Merit report.” Donnelly
acknowledged Jean-Paul’s change of heart and promised to
submit the no-merit report. Donnelly also advised Jean-Paul
that the deadline for the no-merit was not on March 14, but
rather 180 days from when the last transcript from the trial
had been released. See § 809.32(2)(a). The transcript was
released on November 13, 2007, which meant that the report
wasn’t due until May 2008.
By March 14, 2008, however, Jean-Paul was looking for
the no-merit report. He asked Donnelly and the court clerk if
it had been filed. Donnelly responded that the no-merit
report was due by May 9, and he would file it before then.
The clerk answered that the report was due May 12.
No. 14-3088 3
In April Jean-Paul changed his mind again, so Donnelly
asked the appellate court for permission to withdraw from
the case. With his motion Donnelly submitted a “Statement
of Decision to Proceed Pro Se” signed by Jean-Paul. The
statement, dated April 4, read as follows:
I, Gregory Jean-Paul declare that I have de-
cided to proceed pro se with my appeal. I un-
derstand that pro se means that I will represent
myself in this matter without the assistance of
an attorney. I have made my decision to appeal
pro se after talking with my appointed counsel,
Patrick M. Donnelly, Assistant State Public De-
fender, and I understand that the ramifications
of my decision to be as follows:
1. I understand that by deciding to repre-
sent myself I am giving up my right to be rep-
resented on appeal by Mr. Donnelly, who was
appointed to represent me by the Office of the
State Public Defender. I understand that this
appeal is my one appeal of right from my con-
viction and that no other attorney will be ap-
pointed by the Office of the State Public De-
fender to represent me in this case in the fu-
ture.
2. I understand that there are dangers and
disadvantages in representing myself and ad-
vantages in having an attorney represent me
because an attorney familiar with the law may
be in a better position to discover factual in-
formation or legal arguments which could as-
sist me in seeking postconviction relief. I also
4 No. 14-3088
understand that even though I am not an at-
torney, I will be expected to follow the statutes,
rules, and procedures for filing postconviction
motions, appeals and subsequent briefing in
the court of appeals. I understand that I will be
personally responsible for all aspects of my
appeal, including the obligation to file post-
conviction motions or a notice of appeal by the
current dead-line, March 14, 2008, unless I per-
sonally seek and obtain an additional extension
of time from the court of appeals.
I have discussed with my attorney my right
to a no-merit report and I have decided to pro-
ceed pro se. This decision is entirely voluntary
on my part and is not the result of any threats
or promises from anyone.
The Wisconsin Court of Appeals accepted Jean-Paul’s waiv-
er and granted Donnelly’s motion to withdraw.
Proceeding pro se, Jean-Paul filed several challenges to
his conviction. First, he voluntarily dismissed his appeal and
brought a state postconviction motion, which in Wisconsin
precedes a direct appeal. See WIS. STAT. § 974.02; Morales v.
Boatwright, 580 F.3d 653, 656–57 (7th Cir. 2009). He argued
that his trial counsel had been ineffective for failing to listen
to certain audiotapes. This motion was rejected. Jean-Paul
then refiled his direct appeal, and the state appellate court
affirmed his conviction.
Next, Jean-Paul filed a petition for habeas corpus in the
state appellate court challenging the validity of his waiver of
counsel on direct appeal. He argued that he was not compe-
No. 14-3088 5
tent to waive his right to counsel and had not done so know-
ingly or intelligently. In addition to the correspondence with
his counsel recounted above, Jean-Paul submitted an affida-
vit stating, without more, that “I Jean-Paul, Gregory, swear
that I can not read or write.” An affidavit of another prisoner
repeats that Jean-Paul is illiterate and asserts that he, the
fellow prisoner, had prepared Jean-Paul’s legal filings. Based
on this evidence, Jean-Paul argued that he had misunder-
stood the April 4 statement he signed. He argued that he
thought it was a requirement for his lawyer to file a no-merit
report, not that it was a waiver of his right to counsel on
appeal.
The Wisconsin Court of Appeals denied relief. The court
explained that Jean-Paul may now regret “his choice to
proceed with the assistance of a jail-house lawyer,” but that
this did “not undermine the validity of his initial, knowing
and voluntary decision to represent himself” on appeal.
Other unrelated postconviction petitions and appeals were
unsuccessful.
Moving next to federal court, Jean-Paul filed a petition
for habeas relief under § 2254. He renewed his claim that he
had not knowingly and intelligently waived his right to
appellate counsel. The district judge denied relief, holding
that the state appellate court had applied the right standard
and reached a reasonable result. At most, the judge ex-
plained, Jean-Paul had “demonstrated that [his waiver of
appellate counsel] is a decision he has come to regret, which
does not make it unknowing or unintelligent.”
6 No. 14-3088
We granted a certificate of appealability on the question
whether Jean-Paul was denied his Sixth Amendment right to
appellate counsel. 1
II. Analysis
Criminal defendants have a Sixth Amendment right to
counsel on a direct appeal taken as of right. Halbert v. Michi-
gan, 545 U.S. 605, 610 (2005); Douglas v. California, 372 U.S.
353, 356–57 (1963). To waive that right, a defendant must be
competent to waive and must do so knowingly and intelli-
gently. Godinez v. Moran, 509 U.S. 389, 400–01 (1993). Wheth-
er a defendant is competent to waive counsel turns on
“whether he has the ability to understand the proceedings.”
Id. at 401 n.12. “[T]he ‘knowing and voluntary’ inquiry, by
contrast, is to determine whether the defendant actually does
understand the significance and consequences of a particular
decision and whether the decision is uncoerced.” Id.As an initial matter, the State argues procedural default,
contending that Jean-Paul did not “fairly present” to the
state courts the argument he now pursues—that his waiver
was not knowing and intelligent. See Lewis v. Sternes,
390 F.3d 1019, 1025–26 (7th Cir. 2004); Perruquet v. Briley,
390 F.3d 505, 513 (7th Cir. 2004). We disagree. Jean-Paul’s
state habeas petition stated several times that a waiver of his
right to counsel must be made “knowingly, intelligently and
voluntarily.” True, he emphasized that he was not “compe-
tent to proceed pro se.” But he also argued that he misun-
1We recruited pro bono counsel to assist Jean-Paul on appeal and thank
E. King Poor and Matthew T. Ingersoll of Quarles & Brady LLC for
accepting the appointment and ably discharging their duties.
No. 14-3088 7
derstood the waiver form and thought it was required for
his attorney to file a no-merit report. Jean-Paul thus “framed
the claim in terms so particular as to call to mind a specific
constitutional right.” See Perruquet, 390 F.3d at 519–20 (inter-
nal quotation marks and citation omitted).
The State also maintains that Jean-Paul forfeited this
claim by failing to raise it in the district court. Again, the
State is incorrect. Jean-Paul’s § 2254 petition specifically
alleges that he “didn’t have the required information … to
warn a defendant of the risk of counsel withdraw or a
defendant disadvantage proceeding pro se [sic].” This
language recalls the warnings a defendant must receive
before waiving his right to trial counsel, see Faretta v. Califor-
nia, 422 U.S. 806, 835 (1975), and the district court appropri-
ately treated the petition as questioning whether Jean-Paul’s
waiver of appellate counsel was “knowing and voluntary.”
Turning to the merits of the claim, Jean-Paul faces a stiff
burden. He must show that the state appellate court’s deci-
sion was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d); see Carter v. Douma, 796 F.3d 726,
733 (7th Cir. 2015). The state court’s ruling must be “so
lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.” Carter, 796 F.3d at 733
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
The state court’s decision was not based on an unreason-
able application of clearly established law. The Supreme
8 No. 14-3088
Court has held that waiver of the right to counsel must be
knowing and intelligent, and has also explained that such a
determination is case specific. See Iowa v. Tovar, 541 U.S. 77,
88 (2004); Godinez, 509 U.S. at 401–02; Faretta, 422 U.S. at 835;
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). But as this court
recognized in Speights v. Frank, 361 F.3d 962, 964–65 (7th Cir.
2004), the Court has also held that the inquiry into the
validity of a waiver depends on the stage of the proceedings
at which the waiver occurs. See Marshall v. Rodgers, 133 S. Ct.
1446, 1450 (2013) (explaining that a circuit court may “look
to circuit precedent to ascertain whether it has already held
that the particular point in issue is clearly established by
Supreme Court precedent”). A waiver of counsel before trial
may require a “give-and-take between the accused and
someone trying to educate him about counsel’s benefits.”
Speights, 361 F.3d at 964–65 (citing Tovar, 541 U.S. at 90). But
a waiver of counsel on appeal need not be accompanied by
this kind of colloquy because “the major complexities,
choices, and risks are past.” Id. at 965. Instead, “straightfor-
ward assent” is enough to waive the right to counsel on
appeal. Id.
Applying this standard, the state appellate court reason-
ably concluded that Jean-Paul validly waived his right to
counsel on appeal. After he told his lawyer that he wanted to
proceed pro se, his lawyer gave him a waiver form that
notified him of the perils of doing so, see Halbert, 545 U.S. at
621, and he later signed it.
Jean-Paul raises two arguments in response. First, he con-
tends that the form he signed is insufficient as a matter of
law. Although it listed the risks of proceeding pro se, it did
not explain that if his lawyer filed a no-merit report, the
No. 14-3088 9
appellate court must assess it before deciding whether to
release counsel. Jean-Paul relies on Betts v. Litscher, 241 F.3d
594, 595–96 (7th Cir. 2001), where this court found that a
letter from counsel to the appellate court stating only that
the defendant had “declined an opportunity to have a no-
merit report filed by [his attorney] and elected to proceed
pro se with an appeal” was “scant evidence” of waiver. The
defendant in that case did not sign counsel’s letter, however,
and no evidence showed that he understood that if his
counsel filed a no-merit report, the state court had to assess
that report before permitting his attorney to withdraw. Id. at
596.
Here, in contrast, not only did Jean-Paul sign the waiver
form, the record supports a finding that he understood that
the state appellate court would evaluate any no-merit report.
In the signed waiver form, Jean-Paul states that he had
“discussed with my attorney my right to a no-merit report.”
And in his correspondence with Donnelly, Jean-Paul asked
for all court papers so he could “fully and thoroughly re-
spond to the No Merit report.” This evidence shows that
Jean-Paul understood that the appellate court would decide
whether to accept Donnelly’s no-merit report. This case is
thus distinguishable from Betts.
Jean-Paul also argues that the state appellate court made
an “unreasonable determination of the facts” in finding that
his waiver of appellate counsel was knowing and voluntary.
He admits that a signed waiver form ordinarily can establish
that a defendant has validly waived his right to counsel on
appeal. But he argues that his signed waiver is vitiated by
other evidence—namely, his correspondence with counsel,
which shows “confusion” about deadlines and “vacillation”
10 No. 14-3088
about whether to proceed pro se, and the affidavits asserting
his inability to read or write. He argues that the state appel-
late court unreasonably evaluated this evidence when
deciding that his signed assent established that his waiver
was knowing and voluntary.
A state court’s factual finding is unreasonable only if it
“ignores the clear and convincing weight of the evidence.”
Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013) (internal
quotation marks and citations omitted). Here, the evidence
reasonably supports the state appellate court’s factual
findings. First, the “vacillation” reflected in the letters shows
only that Jean-Paul reconsidered whether to proceed pro se.
Jean-Paul points to no case suggesting that when a defend-
ant is initially uncertain about waiving appellate counsel, a
later-signed waiver is presumptively suspect.
Second, the confusion about deadlines is irrelevant. It
may suggest uncertainty about when he needed to sign a
waiver, but not whether to do so. Finally, the state appellate
court reasonably discounted the evidence that Jean-Paul
cannot read or write. His inability to read (assuming that’s
true) does not necessarily imply an inability to understand
what is read to him, and Jean-Paul hasn’t claimed that the
waiver wasn’t read to him or that he did not understand it.
He argues that he thought it had something vaguely to do
with the no-merit report, but his affidavit doesn’t say that.
Although the affidavits could support a finding that he was
confused about the waiver, the weight of the evidence is not
clearly and convincingly in his favor. Accordingly, the state
appellate court’s factual finding that Jean-Paul validly
waived counsel survives habeas review. See Brumfield v.
Cain, 135 S. Ct. 2269, 2277 (2015) (explaining that “state-court
No. 14-3088 11
factual determinations” are not “unreasonable merely
because we would have reached a different conclusion in the
first instance” (internal quotation marks, alterations, and
citation omitted)).
AFFIRMED.