James Freeman v. Guy Pierce

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-1229
JAMES FREEMAN,
Petitioner-Appellant,
v.
GUY PIERCE,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 4994 — Samuel Der-Yeghiayan, Judge.
ARGUED SEPTEMBER 28, 2017 — DECIDED DECEMBER 27, 2017
Before BAUER, MANION, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. For over forty years, the Supreme
Court has recognized that the Sixth Amendment implicitly
entails a right to self-representation. Faretta v. California, 422
U.S. 806, 819 (1975). When Petitioner James Freeman, charged
in Illinois state court with kidnapping and murder, filed a
motion to proceed pro se, the judge denied his request and
2 No. 16-1229
found that he did not possess the necessary experience and
abilities to represent himself. Freeman ultimately proceeded to
trial with a lawyer and was convicted.
While acknowledging that the right to self-representation
cannot be denied based on limited education and legal abilities,
the Illinois Appellate Court affirmed the denial of Freeman’s
right on the ground that his request was not unequivocal. The
trial court’s denial of Freeman’s self-representation right, and
the appellate court’s affirmance of that decision, were both
contrary to, and unreasonable applications of Faretta. Freeman
petitioned this Court for a writ of habeas corpus, and since he
has satisfied the stringent standards for habeas relief under 28
U.S.C. § 2254(d)(1), he is entitled to the issuance of a writ.
I. BACKGROUND
A. Freeman’s Initial Request to Proceed Pro Se
On February 18, 2004, Freeman was indicted in Illinois in
connection with the kidnapping and murder of a drug dealer,
Robert Green. Following his arraignment, the court appointed
public defender Kevin Foster as Freeman’s counsel. In June,
2004, the State announced that it intended to seek the death
penalty. Shortly thereafter, Freeman orally requested to
proceed pro se. The trial court granted Freeman’s request, and
Foster withdrew as Freeman’s counsel.
The court held a status hearing on November 3, 2006, and
invited Foster to attend. At the hearing, the court asked
Freeman whether he intended to continue representing
himself. The court repeatedly reminded Freeman of the perils
of proceeding without a lawyer, particularly since the State
No. 16-1229 3
was seeking the death penalty. Freeman remained firm in his
desire to proceed pro se despite the court’s strong encourage-
ment to have Foster reappointed.
The court then moved onto other matters and set a pretrial
conference date in two months. However, Freeman informed
the judge that a two-month gap between his court appearances
would result in him being transferred to a jail much farther
away. In order to avoid the transfer and to set a shorter status
date, Freeman agreed to have counsel reappointed. Freeman
asked whether Foster would be reappointed, and told the court
that he “waived [Foster] for a reason.” The court said the
Public Defender’s Office would determine which particular
public defender would be assigned. Ultimately, Foster was
reappointed as Freeman’s counsel at the next status date.
B. Freeman’s Motion to Proceed Pro Se and for Standby
Counsel
On September 20, 2007, Freeman filed a motion titled
“Motion to Proceed Pro Se and for Standby Counsel.” In the
motion, Freeman again stated that he wished to proceed pro se
due to a “conflict of interest” with Foster, and that he did not
believe he would “receive the full effective assistance of
counsel from [Foster].” Twice in the motion, Freeman stated
that he did not wish to be represented by Foster, or any other
member of the Public Defender’s Office. Freeman also asked
the court to appoint two standby counsel. The motion con-
cluded with a request that the court “grant this motion for
leave to proceed Pro Se with standby counsel and accept this
waiver as being knowingly, intelligently and voluntarily
relinquished.”
4 No. 16-1229
Freeman’s motion was taken up on October 19, 2007. The
court indicated for the record that before it was “a pro se
motion to proceed pro se and for standby counsel.” After
Freeman acknowledged that he filed the motion, the court
began questioning Freeman about his request:
The Court: Mr. Freeman, you are not saying why it is
that you say you feel Mr. Foster cannot give
you effective assistance of counsel in your
motion.
Freeman: I explained it in there.
The Court: No. You say that I believe that prejudice
[will] result in the outcome with this lawyer
representing you and that you won’t receive
the full effect of assistance of counsel from
this attorney. That’s a conclusion sir.
What facts are you presenting to me that
would lead you to conclude that?
Freeman: I mean, based on me and this attorney com-
munication and due to the representation
that—since he been on my case, it haven’t
been—like when he comes and see me, we
always arguing. You know he tell me that I
think I am too smart. He kind of downgrade
me. He shows signs of like this case can’t be
won and all that. I don’t believe that he will
put his full effort into seeing that I receive a
fair trial.
No. 16-1229 5
The court denied Freeman’s request to proceed pro se. The
court explained that Freeman had “about an eighth grade
education, that [he] left school after eighth grade.” Addition-
ally, the court noted the circumstances of Freeman’s arrest, and
stated that he “did not effectively raise and exercise [his]
constitutional rights.” The court continued:
Now you are asking, after I have ruled on the
motion to suppress statements, that you be al-
lowed to go pro se again and that you have
standby counsel. You don’t have an absolute right
to represent yourself. Your right to represent
yourself is constrained by certain things.
I have already advised you about the possible
penalties. I look at what it is you say for your
reasons in representing yourself, and I don’t find
that you have the necessary experience or abilities,
based on what I have learned since I reappointed
Mr. Foster, for you to represent yourself.
The court reminded Freeman that disagreement with Foster
was not ineffective assistance of counsel, and that “[n]o one
guarantees that you will have a lawyer that you get along
with.” However, the court made clear to Freeman that its
decision on his ability to represent himself was final:
I find that your motion to proceed pro se is not
warranted under this situation. I will not let you
proceed pro se any further. I have given you an
opportunity to do that once. You have asked to
have counsel reappointed.
6 No. 16-1229
You have not given me an additional reason why
you should proceed pro se. Based on what you
told me, based on this motion, I am going to deny
this motion …
Freeman objected by stating that he was “not going to trial
with this attorney.” After further objections were ignored by
the court, Freeman walked out of the courtroom before the
close of the hearing.
C. Trial and Post-Conviction Procedural History
On November 20, 2007, a month after Freeman’s motion to
proceed pro se was denied, public defender Bernard Sarley
filed an appearance on behalf of Freeman. Freeman made no
objection to Sarley’s representation, and never made another
request to proceed pro se.
Sarley filed a motion to dismiss the indictment, which
caused the State to re-indict Freeman on February 22, 2008.
Sarley represented Freeman throughout the trial, and ulti-
mately, a jury found Freeman guilty of first-degree murder and
kidnapping in February, 2009. The court sentenced Freeman to
60 years in prison.
Freeman appealed on the grounds that he was denied his
Sixth Amendment right to self-representation. On
November 18, 2011, the Illinois Appellate Court affirmed the
conviction, and found no error in the trial court’s denial of
Freeman’s motion to proceed pro se because Freeman “did not
unequivocally invoke his right to self-representation.” People v.
Freeman, No. 1-09-1148, 2011 WL 9688910, at *7 (Ill. App. Ct.
No. 16-1229 7
Nov. 18, 2011). The Illinois Supreme Court denied leave to
appeal.
Having exhausted his state court post-conviction remedies,
on June 3, 2015, Freeman filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254, raising ten claims,
including that he was denied his Sixth Amendment right to
self-representation. The district court concluded that Freeman’s
self-representation claim was barred under 28 U.S.C. § 2254(d)
because the Illinois Appellate Court found he did not unequiv-
ocally evoke his right to proceed pro se. The district court also
denied the claim on the merits, and did not grant a certificate
of appealability.
On December 22, 2016, this Court granted Freeman a
certificate of appealability, finding that Freeman had made a
substantial showing of the denial of his right to represent
himself at trial.
II. DISCUSSION
We review a district court’s denial of a habeas petition
de novo. Stechauner v. Smith, 852 F.3d 708, 714 (7th Cir. 2017).
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides that a federal court may only grant habeas relief if the
state court’s adjudication of a prisoner’s claim “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States;” or if the adjudica-
tion “resulted in a decision that 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)(1) and (2). This
standard is “difficult to meet,” and a prisoner is only entitled
8 No. 16-1229
to relief if the state court’s adjudication of the claim is “so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,
102–03 (2011). We apply this standard to the Illinois Appellate
Court’s decision on direct appeal, as that was the last state
court to adjudicate Freeman’s self-representation claim on the
merits. Jordan v. Hepp, 831 F.3d 837, 843 (7th Cir. 2016).
Under § 2254(d)(1), a decision is contrary to Supreme Court
precedent “if it applies a rule that contradicts the governing
law set forth in [the Supreme Court’s] cases, or if it confronts
a set of facts that is materially indistinguishable from a decision
of [the Supreme Court] but reaches a different result.” Tatum
v. Foster, 847 F.3d 459, 464 (7th Cir. 2017) (quoting Brown v.
Payton, 544 U.S. 133, 141 (2005)). An unreasonable application
of Supreme Court precedent “must be objectively unreason-
able, not merely incorrect.” Blackmon v. Williams, 823 F.3d 1088,
1099 (7th Cir. 2016) (citing Wiggins v. Smith, 539 U.S. 510,
520–21 (2003)).
Although the Sixth Amendment to the U.S. Constitution
only grants that a defendant shall “have the Assistance of
Counsel for his defence,” the Supreme Court determined in
Faretta that the right to self-representation is “necessarily
implied by the structure of the Amendment.” Faretta, 422 U.S.
at 819. Accordingly, the Court held that the State may not
“constitutionally hale a person into its criminal courts and
there force a lawyer upon him, even when he insists that he
wants to conduct his own defense.” Id. at 807. This implicit
constitutional right to self-representation belongs to all
No. 16-1229 9
defendants, so long as they are mentally competent, and can
knowingly and intelligently waive the right to counsel. Id. at
835.
The Illinois trial court denied Freeman’s motion to proceed
pro se and for standby counsel, relying on Freeman’s lack of
education and legal abilities for its ruling. That ruling was
contrary to, and an unreasonable application of Faretta. The
Illinois Appellate Court affirmed the denial of Freeman’s right
to self-representation, but under a different basis: that Free-
man’s motion and request was not unequivocal. That decision,
too, was contrary to, and an unreasonable application of
Faretta. The State argues that the appellate court correctly
concluded that Freeman’s motion was equivocal, but advances
another basis for denying the writ: that Freeman acquiesced to
representation when Foster was replaced by Sarley as his
counsel, and thereby, waived the right to self-representation.
Because the appellate court did not make this factual finding,
it is due no AEDPA deference, and the State’s alternative
argument is therefore without merit.
We address each of these three distinct bases for denying
Freeman’s motion to proceed pro se in turn.
A. Illinois Trial Court’s Denial of Freeman’s Motion to
Proceed Pro Se Based on his Limited Education and
Legal Abilities
Faretta made clear that a judge’s inquiries into a defendant’s
“technical legal knowledge” are “not relevant to an assessment
of his knowing exercise of the right to defend himself.” Id. at
836. In Faretta’s own case, his lack of higher education and
understanding of the law was an improper basis for denying
10 No. 16-1229
his request to represent himself. Id. at 807, 835 (noting that
Faretta had a high school education and was “literate, compe-
tent, and understanding”).
As the State concedes, the trial court’s denial of Freeman’s
motion to proceed pro se was plainly improper in light of
Faretta. The trial court specifically relied on Freeman’s lack of
education and unawareness of his own constitutional rights in
finding that he did not possess the “the necessary experience
or abilities.” Yet, nothing distinguishes Freeman’s education
and legal abilities from Faretta’s, which the Supreme Court
found were irrelevant as to whether Faretta could represent
himself. So, the trial court’s ruling was both contrary to, and an
objectively unreasonable application of Faretta. See Tatum, 847
F.3d at 467–69 (finding denial of self-representation based on
tenth-grade education and limited legal knowledge both
contrary to, and an unreasonable application of Faretta); Imani
v. Pollard, 826 F.3d 939, 946–47 (7th Cir. 2016) (same).
To the extent the appellate court’s affirmance was a
conclusion that Freeman could be denied the right to represent
himself based on his limited educational and legal abilities, that
conclusion was also contrary to Faretta. See Imani, 826 F.3d at
946. The Illinois Appellate Court acknowledged that denying
the right to self-representation based on education, ability
or legal knowledge would be improper. Freeman, 2011 WL
9688910, at *7. However, the court did not explicitly recognize
the trial court’s error or find that it was harmless. Instead, the
court shifted its analysis to whether or not the request was
unequivocal, and therefore, we now evaluate the reasonable-
ness of that analysis.
No. 16-1229 11
B. The Illinois Appellate Court’s Holding that Freeman’s
Motion to Proceed Pro Se was Not Unequivocal
The Illinois Appellate Court affirmed the denial of Free-
man’s motion because his “request for self-representation did
not constitute an unequivocal invocation of his right to proceed
pro se.” Freeman, 2011 WL 9688910, at *7. The appellate court
gave three reasons, based on the record, for concluding that
Freeman’s motion to proceed pro se was not unequivocal:
(1) that Freeman took “vacillating positions” on whether to
represent himself; (2) that Freeman “also requested standby
counsel”; and, (3) that Freeman’s motion “was primarily based
on his objection to representation by certain counsel, rather
than a decision to self-represent.” Freeman, 2011 WL 9688910,
at *7.
This conclusion simply cannot be squared with either
Faretta or the record. We address each of these reasons for
concluding that Freeman’s request was equivocal.
1. Vacillating Positions on Representation
In order to effectively raise the right to self-representation,
the request must be made “clearly and unequivocally.” See
Faretta, 422 U.S. at 835; see also United States v. Campbell, 659
F.3d 607, 612 (7th Cir. 2011), vacated on other grounds, 568 U.S.
802 (2012). Courts have required a clear and unequivocal
request to ensure against a defendant losing his Sixth Amend-
ment right to counsel, as well as to prevent a defendant from
using an ambiguous request as a weapon to overturn his
conviction on appeal. Id.
12 No. 16-1229
Nothing in the record indicates Freeman took vacillating
positions on his desire to represent himself. Freeman’s motion
was explicitly titled “Motion to Proceed Pro Se and for Standby
Counsel,” and in it, Freeman made a definitive request that the
court “grant this motion for leave to proceed pro se.” More-
over, nothing in the record suggests that the trial court
misunderstood Freeman’s motion. The record is replete with
statements from the trial court indicating that it clearly
interpreted Freeman’s motion as a request for self-representa-
tion: “I have before me a motion to proceed pro se and for
standby counsel”; “You don’t have an absolute right to
represent yourself”; “I don’t find that you have the necessary
experience or abilities … to represent yourself”; “I find that
your motion to proceed pro se is not warranted under this
situation.”
The Illinois Appellate Court did not elaborate on exactly
how Freeman took vacillating positions, but it did reference the
fact that Freeman agreed to have the Public Defender’s Office
reappointed to his case after initially proceeding pro se.
However, Freeman’s willingness to have Foster reappointed
had no bearing on whether his motion to proceed pro se ten
months later was unequivocal. Faretta forecloses any argument
to the contrary, since the Supreme Court found no vacillation
or equivocation in Faretta’s request for self-representation even
though Faretta had previously been appointed counsel. Faretta,
422 U.S. at 807 (noting Faretta initially was appointed counsel
at his arraignment). A conclusion that Freeman vacillated on
representing himself because of prior representation is contrary
to, and an unreasonable application of Faretta.
No. 16-1229 13
2. Request for Stand-By Counsel
A request to proceed pro se that is accompanied by a
request to appoint stand-by counsel does not make that request
equivocal. In fact, Faretta explicitly contemplates that a defen-
dant can both invoke the right to self-representation and
request stand-by counsel. The Court in Faretta acknowledged
that the appointment of stand-by counsel may be necessary
“even over objection by the accused … to aid the accused if
and when the accused requests help, and to be available to
represent the accused in the event that termination of the
defendant’s self-representation is necessary.” Faretta, 422 U.S.
at 834, n. 46; see McKaskle v. Wiggins, 465 U.S. 168, 170 (1984)
(noting that Faretta “held that a trial court may appoint
‘standby counsel’ to assist the pro se defendant in his defense”).
The Illinois Appellate Court’s reliance on Freeman’s request for
stand-by counsel in reaching its conclusion of equivocation was
contrary to, and an unreasonable application of Faretta.
3. Dissatisfaction with Counsel
The State relies primarily on the Illinois Appellate Court’s
conclusion that Freeman’s request was based on his dissatisfac-
tion with Foster. Again, the Illinois Appellate Court did not
elaborate on how it reached this conclusion other than stating
it was based on the record.
As an initial matter, it was improper for the trial court to
require Freeman to justify why he wished to proceed pro se
beyond what he had explained in his motion. “It is undeniable
that in most criminal prosecutions defendants could better
defend with counsel’s guidance than by their own unskilled
efforts.” Faretta, 422 U.S. at 834. Yet, a defendant’s choice to
14 No. 16-1229
exercise his right to self-representation “must be honored out
of that respect for the individual which is the lifeblood of the
law.” Id. (citation and internal quotation marks omitted).
Virtually every time a defendant elects to proceed pro se he is
making a foolish choice, but “[n]othing in Faretta or its progeny
allows the judge to require the defendant to prove he is
making the choice for a reason the judge finds satisfactory.”
Imani, 826 F.3d at 945.
Dissatisfaction with counsel does not make a self-represen-
tation request equivocal, and again, Faretta forecloses such an
argument. In that case, Faretta stated that he no longer wished
to be represented by the Public Defender’s Office in his request
to proceed pro se since “he believed that that office was ‘very
loaded down with … a heavy case load.’” Faretta, 422 U.S. at
807. The Court found that Faretta’s request was unequivocal
despite being primarily based on his dissatisfaction with
his public defender. Id. at 835. Freeman’s request to proceed
pro se, like Faretta’s, was primarily based on his dissatisfaction
with Foster. The right of self-representation would be virtually
impossible to invoke if dissatisfaction with counsel meant
equivocation since most requests to proceed pro se are pre-
mised on precisely those grounds. See Batchelor v. Cain, 682
F.3d 400, 408 (5th Cir. 2012).
Moreover, Freeman did not open himself up to equivoca-
tion by requesting that Foster be removed or replaced as
counsel. See McGhee v. Dittmann, 794 F.3d 761, 770 (7th Cir.
2015) (“A request to discharge counsel, without more, ordi-
narily does not signal a clear desire for self-representation.”).
Freeman’s motion and his statements on the record clearly
No. 16-1229 15
reflect that he no longer wanted to be represented by Foster
and that he wanted to proceed pro se. The Illinois Appellate
Court’s conclusion that dissatisfaction with Foster made
Freeman’s request equivocal was contrary to, and an unreason-
able application of Faretta.
The State acknowledges that Freeman’s motion was
unequivocal, but argues that Freeman’s subsequent conduct
after his motion was denied made his request equivocal. In
particular, the State suggests that Freeman’s failure to re-raise
his motion or object to representation by Sarley after he
replaced Foster demonstrates that his real motive was to
replace Foster with new counsel, not to represent himself.
In United States v. Campbell, we noted that a defendant’s
subsequent conduct is relevant in determining whether a
request for self-representation is unequivocal. 659 F.3d at 613.
In that case, the defendant wrote a letter to the trial court
seeking a continuance that concluded with a request for a new
lawyer, or alternatively, to proceed pro se. Id. at 610. The trial
court construed it as a motion to substitute counsel, and when
the court asked the defendant whether he really intended to
represent himself, the defendant wavered and said he did not.
Id. at 610–11. While noting that his initial letter to the trial court
was unequivocal, we ultimately found the defendant’s request
was equivocal since he later indicated that he did not wish to
represent himself, which was “followed by the silence and the
subsequent acceptance of representation throughout the trial.”
Id. at 613.
But, Campbell is materially distinguishable. Our finding of
equivocation there was primarily based on the defendant’s
16 No. 16-1229
wavering position in court on self-representation, followed by
subsequent conduct that indicated he did not wish to represent
himself. Freeman did not waver as to whether he wanted to
represent himself when the trial court addressed his clearly
stated motion. In fact, Freeman was so emphatic in his desire
to proceed pro se that he left the courtroom before the end of
the hearing due to the judge’s refusal to grant the motion.
Importantly, the trial court in Campbell also considered the
defendant’s request to proceed pro se withdrawn and moot in
light of his wavering position. Id. at 611. Freeman never
withdrew his motion, as the trial court clearly denied it on the
merits.
C. The State’s Argument on Appeal that Freeman Acqui-
esced to Representation by Sarley, and Waived the
Right to Self-Representation
On appeal, the State advances a distinct basis from equivo-
cation for denying the writ that is not addressed or found in
the Illinois Appellate Court’s opinion. According to the State
under this alternative argument, Freeman acquiesced to
representation by Sarley by not re-raising his motion or
objecting to Sarley’s representation once he replaced Foster,
and as a result, Freeman waived the right to self-representa-
tion.
Whether a defendant waived his right to self-representation
through acquiescence is a question of fact. Cain v. Peters, 972
F.2d 748, 749 (7th Cir. 1992). Because the Illinois Appellate
Court did not make such a factual finding of acquiescence or
waiver, we afford no AEPDA deference to the State’s alterna-
tive argument. See 28 U.S.C. § 2254(d)(2) and (e)(1) (state-court
No. 16-1229 17
findings of fact can only be rebutted by clear and convincing
evidence).
The State’s acquiescence and waiver argument is without
merit; nothing in the record supports such a factual finding. In
denying Freeman’s request to proceed pro se, the trial court
explicitly told Freeman that “I will not let you proceed pro se
any further.” Freeman was under no obligation to reassert his
motion or continually object to the court’s denial of his motion
after the court had clearly denied his request. Once again,
Faretta affirms why this is so. After Faretta’s request was
denied and he proceeded to trial with counsel, the Court did
not find that Faretta acquiesced to representation by counsel,
or that he waived the right to represent himself. Faretta, 422
U.S. at 810–11. Accordingly, every other circuit that has
encountered such an argument has rejected it. See Batchelor, 682
F.3d at 412 (stating that a defendant “was not required, in
order to avoid waiver, to add anything to the straightforward
request that he had already made plain in writing”); Buhl v.
Cooksey, 233 F.3d 783, 803 (3d Cir. 2000) (noting that defen-
dant’s failure to object to the denial of his request to proceed
pro se was a “far cry from vacillation or waiver”); Wilson v.
Walker, 204 F.3d 33, 37 (2d Cir. 2000) (stating that a defendant
need not continually reassert his request to proceed pro se in
order “to avoid waiver of a previously invoked right to self-
representation”); United States v. Arlt, 41 F.3d 516, 523 (9th Cir.
1994) (“[O]nce a defendant has stated his request clearly and
unequivocally and the judge has denied it in an equally clear
and unequivocal fashion, the defendant is under no obligation
to renew the motion.”).
18 No. 16-1229
The trial court’s denial of Freeman’s unequivocal motion to
proceed pro se on the basis that he lacked the necessary
experience and abilities to represent himself was contrary to,
and an unreasonable application of Faretta. In affirming this
error on the basis of equivocation, the Illinois Appellate Court
reached a conclusion that was also both contrary to, and an
unreasonable application of Faretta. The State’s alternative
argument of acquiescence and waiver, which the appellate
court did not reach, does not change our analysis. Thus,
Freeman’s conviction cannot stand.
III. CONCLUSION
The district court’s judgment is REVERSED and the case is
REMANDED with instructions to grant the writ of habeas
corpus ordering that Freeman be retried, or promptly released.