# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued June 9

, 2015

Decided June 24 , 2015

Before

RICHARD A. POSNER

, Circuit Judge

MICHAEL S. KANNE

, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13

- 2900 Appeal from the

United States District Court
EDWARD GRAHAM,

Petitioner

- Appellant

,

v

.

RANDY PFISTER, Warden, Respondent

- Appellee

. for the Northern District of Illinois,

Eastern Division.

No. 12 C 8870

Elaine E. Bucklo, Judge

.

O R D E R

Edward Graham, an Illinois prisoner, contends in this appeal from the denial of his petition for a writ of habeas corpus, see 28 U.S.C. § 2254, that he was denied his right to be represented at his trial by counsel of his own choosing. Because no decision of the Supreme Court establishes that the circumstances of Graham’s case amount to the
denial of counsel of choice, we affirm.

The facts of Graham’s crime and prosecution a re set forth in detail in state

- court opinions affirming his conviction on direct r eview, s ee People v. Graham , 795 N.E.2d 231 (Ill. 2003), and denying his application for state postconviction relief, see People v.

Graham , 972 N.E.2d 701 (Ill. App. Ct. 2012). We recap as necessary. In the mid

- 1980s Graham delivered drugs and money for Jo hnny Jones, Sr., a major cocaine distributor in NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 1 3

- 2900 Page 2

the Chicagoland area. Although Jones was paying Graham $10,000 per month for his services, Graham began to steal some of the payments he couriered. Jones discovered Graham’s duplicity and retaliated by taskin g Graham with more dangerous deliveries.

In late

- September 1996, Graham was slated to deliver to Jones $750,000, a sum that Graham did not have. Instead, Graham went to Jones’s residence and shot and killed Jones and two other residents, Marshall Mason and Erica Chotoosingh.

Graham retained attorney George Howard to represent him in his capital

murder trial. In the years before Graham’s trial, Howard had been disciplined both by the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) and th is

court. In that time Howard had been stricken from this court’s roll of practicing attorneys for neglecting three criminal appeals; reprimanded by the ARDC for neglecting a criminal case in Illinois court; and suspended from the practice of law in

Illino is for five months for fail ing to communicate with clients, failing to refund
unearned fees, stealing from clients, and neglecting two more criminal appeals. See In re

Howard , 721 N.E.2d 1126, 1128 (Ill. 1999). At the time of Graham’s trial

, Howard was under investigation for lying on his application to practice pro hac vice before the District Court for the District of Alaska, neglecting the defendant he represented in Alaska (by failing to file an appellate brief and then failing to return t he money that he was paid to do so), and practicing law in Illinois while his license was suspended. See id.

at 1128

– 29. He has not been authorized to practice law in the state of Illinois since 1999.

But at the time Graham retained Howard, the second inv estigation was still confidential, so Graham was in the dark about the details. By the time of trial, however, the ARDC’s complaint was public. So on the first day of trial

, the prosecutor informed the court that Howard was under investigation for “profess ional misconduct including allegations that he engaged in the unauthorized practice of law during the period of a suspension” and made clear the S tate’s desire that Graham be fully aware of Howard’s disciplinary troubles before the trial began.

In respons e the court asked Howard whether he “ha[d] any problems at all going forward with Mr. Howard on that account at this time?” Graham apparently had second thoughts about his choice of lawyer. He conceded that he had spoken briefly

with Howard about the ARDC investigation and that Howard previously had assuaged his doubts. But upon reflection, in view of the fact that “this is my life that is on the
line,” Graham said, “I have somewhat a doubt about it

... .” Asked to clarify, Graham explained that his doubt con cerned Howard’s “professional capability.”No. 1 3

- 2900 Page 3

The trial court’s response to Graham’s doubt is at the heart of the dispute in this appeal. The court said, in full:

Let me say this. Certainly I have every confidence in all of the lawyers that are involved in this case. The utmost standard s and highly qualified skilled attorneys in this case. Mr. Howard’s reputation I maybe even say is legendary, I mean about the country. I don’t have any reservations, but it’s not an issue about whether I have any reservation, the issue is whether or not you have any reservations. Let’s go off the

record for one minute.

. . .

All right. We had a discussion off the record where I indicated to

Mr. Graham, part of it on the record, I believe, about my confidence in the lawyers who are involved in this trial. But I said to him my feelings aren’t important, what is important are hi s feelings and he said some things that

I think that we should place of record because I specifically did ask him

off the record whether he had a problem with Mr. Howard’s, the A

. R

. D

. C

. matter but more concerned about Mr. Howard’s ability to represent him and your answer now after having discussed this further off the record, Mr. Graham is what, how do you feel about Mr. Howard and his ability to represent you?

Graham answered, “I feel he’s very capable of representing me.” Graham then proceeded to trial with Howard as his lawyer. He was convicted on all three counts and sentenced to death. (His capital sentence was later commuted to life in prison.)

After exhausting his direct appeals, Graham, for the first time, became fully informed of the facts of Howard’s ARDC investigation. With the assistance of counsel, he then argued in a state postconviction petition that the misinformation regardi ng the extent of the ARDC investigation provided him on the first day of trial effectively denied him counsel of his choosing. The trial and appellate courts rejected that argument, and the Supreme Court of Illinois denied leave to appeal.

The Illinois A ppellate Court , the last state court to address the merits of Graham’s claim, concluded that it was factually unsupported. In the appellate court’s view, the trial court’s repeated admonitions that whether to retain Howard wasNo. 1 3

- 2900 Page 4

ultimately Graham’s decision

, and that his own feelings on the issue were all that

mattered

, sufficiently guarded against the possibility that Graham may have been coerced by the trial court’s endorsement of Howard’s skill. Therefore, the court
determined, Graham had not been denied h is counsel of his own choosing . Moreover, as the appellate court understood Graham, his argument implied a duty on the part of trial judges to ensure that a defendant is aware of all of his or her lawyer’s disciplinary problems. The court rejected that pre mise, concluding that it was inconsistent with the general rule that disciplin ary proceedings be confidential and that it was, in any case, too heavy a burden to place on trial judges.

Graham then turned to federal court and filed a pro se petition under 28 U.S.C. § 2254, seeking relief on a number of claims, including his theory regarding the denial

of his counsel of choice. On that claim the district court concluded that the state appellate court’s opinion reflected a reasonable determination of the fact s and a reasonable application of the controlling law to those facts. The district court declined to certify any issue for appeal, but Graham renewed his certification request before this court, and a motions judge certified the counsel

- of

- choice claim for appeal. No. 13

- 2900 (7th Cir. Apr. 24, 2014). 1

On appeal Graham argues that the trial court’s actions on the first day of his trial infringed on his ability to choose his counsel. When , as here, a § 2254 petitioner presses a claim that was adjudicated b y a state court, we cannot reach the merits of the claim unless the petitioner demonstrates that the state court’s adjudication was contrary to, or an unreasonable application of, clearly established federal law, or involved an

unreasonable determination o f the facts. 28 U.S.C. § 2254(d); Brady v. Pfister , 711 F.3d 818, 827 (7th Cir. 2013) . Graham think s he can surmount this hurdle: H e argues that the Illinois Appellate Court’s adjudication was unreas onable because the court took a too

restrictive view of t he right to be represented by counsel of one’s own choosing. We
cannot agree.

As the Supreme Court has recently reminded us, for the purposes of § 2254

, federal law can be clearly established only by the holdings of that Court. See Woods v.

Donald , 135 S . Ct. 1372, 1376 (2015) (per curiam). A nd a s a corollary, when the “precise contours” of a federal right remain unclear, state courts have broad discretion in adjudicating claims asserting the right. See White v. Woodall , 134 S. Ct. 1697, 1705 (2014).

1 After we certified this appeal, we appointed counsel to brief and argue this case

on Graham’s behalf. We thank Gail Ellis for her able service.No. 1 3

- 2900 Page 5

That is a rule of particular application to this case: The Sixth Amendment’s guarantee of the assistance of counsel has long been understood to protect the right of a

defendant with sufficient means to choose his counsel. See Bute v. Illinois , 333 U.S. 640

, 660, 663 (1948). But the right is qualified in many respects, see Wheat v. United States

, 486 U.S. 153, 159 (1988), and the Supreme Court has rarely had occasion to comment on the scope of the right. Graham argues that the trial court’s “unsolicited endo rsement” infringed on his right to select his counsel, but Graham does not direct us to any holding of the Supreme Court establishing that a court infringes on a defendant’s ability to retain counsel of his choosing when, in the face of hesitation on the p art of the defendant, it endorses a lawyer’s skill. His claim must, therefore, fail.

Nevertheless, Graham argues that a line of precedent finding violations of the Sixth Amendment when a trial court arbitrarily denied a pretrial continuance, effectively denying the defendant any opportunity to obtain new counsel, is instructive

here. See, e.g.

, United States v. Sellers , 645 F.3d 830, 835

– 36 (7th Cir. 2011); Carlson v. Jess

, 526 F.3d 1018, 1025

– 27 (7th Cir. 2008). If a trial court can impermissibly influen ce a defendant’s selection of his lawyer through its scheduling practices, then surely, Graham says, a court’s endorsement of a lawyer after a defendant’s expression of doubt about that lawyer can exert that same impermissible influence.

Once again, Wood all and Donald provide the answer for purposes of federal

habeas review . A state court’s adjudication of a claim cannot be unreasonable if it refuses to extend Supreme Court precedent to cover a new factual scenario. See Woodall

, 134 S. Ct. at 1706. Nor ca n a state court’s decision contravene clearly established federal law if the case does not present a question considered by earlier Supreme Court

decisions. See Donald , 135 S. Ct. at 1377. Whatever merit Graham’s argument has as an original matter, it cann ot support the grant of collateral relief under § 2254.

AFFIRMED.