In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2302

JAMES A. SMITH,

Petitioner-Appellant,

v.

GREGORY GRAMS, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06 C 375—John C. Shabaz, Judge.

ARGUED DECEMBER 5, 2008—DECIDED MAY 15, 2009

Before RIPPLE, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge. Appellant James Smith is

currently serving a fifteen-year sentence for a 1994

armed robbery conviction in the circuit court of Milwaukee 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. BACKGROUND

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 questions 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 criminal 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 representation, 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 renewed during his March 23 hearing—and adjourn that

day’s proceedings, or he could continue in a pro se fashion. 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

The Wisconsin Court of Appeals denied Smith’s first direct 1

appeal on May 29, 1996. Seven years later, however, the Wisconsin 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.

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 protestations, 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 recounted 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
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 summarized its conclusions as follows: “By knowingly choosing the frequently inconsistent courses of action he did

(by repeatedly requesting to discharge counsel and appoint 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 himself 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 violation of the United States Constitution.

In an order issued on March 28, 2007, the district court

dismissed the petition after concluding that the Wisconsin Court of Appeals did not base its decision on an

unreasonable determination of the facts or an unreasonable application of United States law. This appeal

follows from that order.
No. 07-2302 7

II. ANALYSIS

We are presented with two issues. First, the State contests 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 contends 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 jurisdiction.” (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 thirtyday 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) designate 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 prejudiced”). 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

In Ortiz, we noted that certain situations would prevent the 2

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...)

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 designated 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). Here, as in 2
No. 07-2302 11

(...continued) 2

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.

Ortiz, Smith had only one available appellate forum. The

fact that he did not understand this constraint, as evidenced 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.
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 petitioner’s appellate brief was the functional equivalent of

a notice of appeal, downplayed the petitioner’s intentions: “[T]he notice afforded by a document, not the

litigant’s motivation in filing it, determines the document’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 purpose 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 unquestionably 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 equivalent” of a proper notice of appeal. It is therefore unnecessary 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 jurisdiction 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 evaluation, we presume that the state court’s factual determinations 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 application 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 incorporated 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 containing 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, however, courts have continued to recognize the overwhelming advantages that an accused gains from a lawyer’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

See also Powell v. Alabama, 287 U.S. 45, 69 (1932) (“Even the 3

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 . . . .”).

accept the assistance of counsel”). For this reason, courts 3

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 particularly 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 commenting 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
16 No. 07-2302

During the March 23 hearing at which Attorney Sargent 4

(continued...)

vacillated between utilizing appointed counsel and representing himself. The second ground was Smith’s refusal,

on the day of his trial, to adjourn proceedings, notwithstanding 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
No. 07-2302 17

(...continued) 4

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 therefore refuse to consider it as part of our analysis.

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 possible.” 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-representation. 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
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 blessing.

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? Immediately 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 contradiction 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] procedures” that a court must observe before finding valid

waiver of a defendant’s right to trial counsel. See MoyaGomez, 860 F.2d at 732; see also United States v. Hill, 252 F.3d

919, 925 (7th Cir. 2001) (expressing doubt “that any [procedural] 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 thereunder, 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 selfrepresentation, 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 Amendment 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 guidance 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. CONCLUSION

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 REVERSE the decision of the district court

and REMAND with instructions to GRANT 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