In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1741

JOEL RHODES,

Petitioner-Appellee,

v.

MICHAEL A. DITTMAN, Warden,

Columbia Correctional Institution,

Respondent-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13-C-0161 — Lynn Adelman, Judge.

____________________

ARGUED OCTOBER 1, 2014 — DECIDED APRIL 14, 2015

____________________

Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit 

Judges.

WOOD, Chief Judge. Accused of kidnapping and aggravated battery, Joel Rhodes had trouble deciding whether to take 

advantage of his constitutional right to counsel. After going 

through several lawyers, he convinced the state court that he 

wanted to represent himself. But shortly before his trial began in May 2007, he informed the court that he had changed 
2 No. 14-1741

his mind and needed more time for retained counsel to prepare. The court refused to go along; it informed Rhodes that 

his request was untimely and that it smacked of gamesmanship. A jury convicted Rhodes, the Wisconsin Court of Appeals affirmed, and the state supreme court denied review.

Rhodes then turned to the federal court for habeas corpus 

relief under 28 U.S.C. § 2254. The district court ordered the 

writ to be issued, but its ruling was stayed pending appeal. 

We find neither of the state courts’ reasons for rejecting 

Rhodes’s last-minute request for counsel to be unreasonable, 

and thus we conclude that the district court’s judgment is 

inconsistent with the deferential standard of review that applies here. We therefore reverse. 

I

A

This litigation stretches all the way back to 2002, when 

Rhodes was charged by state prosecutors with two counts of 

kidnapping. He retained Peter Kovac as his trial counsel.

Kovac represented Rhodes well: a jury acquitted him on one 

count, while a different jury convicted him on the other 

count. Rhodes appealed the conviction, primarily on the 

ground that Kovac had rendered ineffective assistance, but 

the Wisconsin Court of Appeals (upon the state’s confession 

of error) reversed and remanded based on a problem with 

the jury. 

On remand, the state added a charge of aggravated battery to the information. The court appointed a public defender, Richard Kaiser, to represent Rhodes. On March 13, 

2007, nearly two months before the trial was scheduled to 

begin, Kaiser moved to end his representation of Rhodes,
No. 14-1741 3

because Rhodes wanted to represent himself. The trial court 

held a hearing on Kaiser’s motion on April 2, during which it 

warned Rhodes about the dangers of self-representation. It 

did not rule on the motion that day, however, in part because 

the judge wanted Rhodes and Kaiser to have more time to 

attempt to resolve their differences.

The hearing resumed on April 6, at which point the judge

had an extensive exchange with Rhodes about his decision to 

proceed pro se. After the judge provided Rhodes and his attorney with a waiver form, Rhodes spoke again. He told the 

judge that he “was in the process of hiring Attorney Kovac 

but I don’t know what happened,” and noted that Kovac was 

in the courtroom. Rhodes said that he did not know if Kovac 

was “taking the case or not.” This comment prompted the 

judge to question Kovac directly. Kovac said that Rhodes 

had asked him to be in court for the hearing and that in his 

view Rhodes was not engaging in gamesmanship or building a record for an appealable issue. Nonetheless, he added, 

Rhodes had not yet retained him. After receiving the completed waiver form from Rhodes, the judge again questioned 

Rhodes about his decision to represent himself, and Rhodes

confirmed that he still wished to do so “[b]ecause I think 

that I can better defend myself in this case.” The judge then 

granted Rhodes’s request to proceed pro se.

We would not be here if that had been the end of the matter. Between the hearing we have just described and the start 

of the trial, Rhodes and Kovac sent a stream of correspondence to the court. On April 18, Rhodes wrote the judge a 

short letter informing him that he authorized Kovac “to 

speak on my behalf” to the judge and the prosecutor “in 

connection with the case that I have pending in your court.” 
4 No. 14-1741

On April 23, Kovac wrote to the court vouching for Rhodes’s 

character, including his interests in religion and philosophy,

and opining that proceeding pro se would be “difficult and 

bad” for Rhodes. Kovac explained that Rhodes had “asked 

me to represent him at trial,” but that it would be impossible 

for him to prepare properly in the time remaining before 

May 7, the scheduled start date. Kovac asked the judge to 

reschedule the trial in order to allow him to prepare, to “protect [Rhodes’s] Sixth Amendment right to counsel,” and perhaps to prompt a plea agreement. On May 1, Rhodes chimed 

in with a letter to the judge, informing him of difficulties in 

his preparation. He mentioned that he had asked Kovac to 

“come in and assist” and complained about the judge’s refusal to postpone the trial. Two days later Rhodes wrote the 

judge again to complain that the state was making his trial 

preparation difficult. Rhodes told the judge that he “now 

better appreciate[s] the difficulties of representing myself” 

and wanted Kovac to represent him. Finally, on May 6, Kovac again wrote to the judge, reiterating that Rhodes had 

asked Kovac to represent him but that Kovac did not have 

enough time to prepare for the May 7 trial.

The judge took note of this correspondence at the outset 

of trial on May 7, before jury selection. He noted that Rhodes 

previously had accused Kovac of ineffective assistance of 

counsel in a post-conviction motion. The judge found “bizarre” the fact that Rhodes was now asking the court to allow Kovac again to represent him. He reminded Rhodes that 

Rhodes had waived his right to counsel after a long exchange with the court. After Rhodes asked whether the 

judge would grant an adjournment so that Rhodes could 

“properly prepare,” the judge replied that he was “denying 

the adjournment because of, specifically, your motion to al-
No. 14-1741 5

low you to represent yourself was heard back in March [sic]. 

You apparently had been thinking about this for some time 

and you said you were going to be prepared for the trial. So 

your motion to adjourn is denied.” The judge told Rhodes he 

could not “have it both ways”: “On the one hand you ask to 

represent yourself. Because of the law and what I feel was a 

record that established you could represent yourself, because 

it is your constitutional right, I allowed to you do that [sic]. 

You are not going to argue the other way now that you want 

someone to represent you on the day of trial.” The judge later added that he thought “that there are games going on 

here, which I am not going to put up with,” and that

Rhodes’s request for Kovac to serve as counsel “roughly two 

weeks before trial ... is just not going to cut it in this Court’s 

opinion.”

At various other points during the trial, the judge refused 

to permit Kovac to serve as Rhodes’s standby counsel, given 

Kovac’s representations to the court that he was not prepared for the trial. The judge also rejected Rhodes’s request 

for a computer. At one point, Rhodes told the court that his 

trial was “just a lost cause” and that he “revoke[d] the right 

to represent myself.” The judge told Rhodes he was “a day 

late and a dollar short” and declined to change his ruling.

Rhodes later made another motion for standby counsel, 

which the court denied. On the fourth day of trial Kovac actually sat at the counsel table next to Rhodes and asked for 

permission to deliver Rhodes’s closing argument. The judge, 

after recounting the history of Rhodes’s and Kovac’s dealings 

with the court, said that he “believe[d] that this record is being manipulated.” Once again, he declined to alter his ruling. The jury convicted Rhodes on both the kidnapping and 

aggravated battery charges.
6 No. 14-1741

B

After the trial court denied his postconviction motion for 

a new trial based on denial of his right to counsel, Rhodes 

appealed his conviction to the Wisconsin Court of Appeals. 

His primary point was that the trial court had erred in refusing to allow Kovac to represent him. The court of appeals 

found no merit in this argument. It described the trial court’s 

April 2007 colloquy with Rhodes discussing his waiver of 

counsel as “exemplary”: the judge properly warned Rhodes 

of the dangers of self-representation and promptly questioned Kovac at the hearing once Rhodes mentioned that he 

had been trying to hire Kovac. This was enough, in the appellate court’s opinion, to support a finding of a deliberate 

waiver of the right to counsel and the assertion of the right 

to self-representation recognized in Faretta v. California, 422 

U.S. 806 (1975). 

As for the trial judge’s refusal to allow Rhodes to reinstate Kovac as his attorney, the court of appeals concluded 

that the judge’s two-part rationale—the timing of Rhodes’s 

request and Rhodes’s gamesmanship—was sound. First, it 

held that it was “[p]lainly” proper for the trial judge to believe that “an adjournment to permit the involvement of an 

attorney who concededly was not yet prepared to try the 

case would have had a significant impact on court administration, calendar management, and witness availability.” It 

also found no abuse of discretion in the trial judge’s assessment of Rhodes’s tactics. It pointed out that Rhodes had 

made three “mutually exclusive” requests regarding his representation. The trial judge’s conclusion that “Rhodes was 

attempting to affect the proceedings adversely by inserting a 

lawyer into the case who was concededly unprepared and 
No. 14-1741 7

who Rhodes previously challenged as constitutionally ineffective” was a permissible one. The court of appeals thus 

found that each of the trial judge’s reasons independently 

supported the refusal to permit Rhodes to revoke his waiver 

of counsel and bring in Kovac to represent him at trial. The

court added that Rhodes did not suffer a deprivation of his 

right to counsel when jail officials prevented him from visiting with Kovac the weekend before trial.

C

Rhodes filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the Eastern District of Wisconsin in 

February 2013. He made three arguments in support of his 

petition: first, the Wisconsin court erred in finding that his 

waiver of counsel was valid; second, it erred by failing to 

recognize that his Sixth Amendment right to counsel was 

denied when the trial court refused to allow him to revoke 

his waiver; and finally, the court wrongly concluded that his 

right to counsel was not violated when the jail officials refused to let Rhodes meet with Kovac.

The district court began with the trial court’s first reason 

for denying Rhodes’s request to reinstate Kovac: that it was 

untimely. Had that reason stood alone, the court said, “the

trial judge would not have abused his discretion.” Given the 

fact that Rhodes made his request on the brink of trial, the 

district court saw no abuse of discretion in the timing of the 

trial judge’s ruling, which he delivered on the morning of 

trial. By that time, the district court acknowledged, “witnesses had already been assembled and the trial could not 

have been rescheduled without interfering with orderly 

court administration.” Thus “the trial judge would have 

been within his discretion to deny Rhodes’s request solely 
8 No. 14-1741

because of its untimeliness and the resulting prejudice to 

court administration.”

Instead of ending its inquiry there, however, the district 

court went on to consider the state judge’s second reason: his

concern that Rhodes was engaged in gamesmanship and an 

attempt to manipulate the record. The district court found 

this characterization to be unreasonable, despite the Wisconsin Court of Appeals’s contrary view. It took issue with the 

idea that Rhodes’s various requests concerning Kovac and 

his request to use a computer were “mutually exclusive.” In 

fact, the district court said, these were “alternative and consistent requests,” and the state court’s conclusion to the contrary was unreasonable. It then undertook a de novo review 

of the trial court’s denial of Rhodes’s request to reinstate his 

counsel and found it to be an abuse of discretion. “The only 

reasonable conclusion,” the district court concluded, was 

that “Rhodes earnestly wanted Kovac to represent him because he thought Kovac would do a better job than he could 

do himself, not because he was playing games.” The finding 

of gamesmanship and manipulation was clear error, therefore, and the reliance on it deprived Rhodes of his Sixth 

Amendment right to counsel.

This left the obvious question why, despite any error on 

the second ground, the first was not enough to require the 

denial of Rhodes’s petition for a writ of habeas corpus. The 

district court explained that it understood its task to be to 

“review[ ] a judge’s reasoning process, not merely the outcome produced by that reasoning process.” This meant, the 

court wrote, that even if the state court’s resolution of the 

case “is within the range of permissible outcomes,” that is 

not enough when the judge’s reasoning process is “tainted” 
No. 14-1741 9

by a clearly erroneous factual finding. Because it had found 

that the state trial court erroneously relied on the gamesmanship ground, the district court granted Rhodes’s petition. 

II

Warden Dittman has appealed from that decision. He 

raises three arguments for reversal: first, that there is no 

clearly established right to forgo self-representation at the 

last minute; second, that the Wisconsin courts did not unreasonably apply nor act contrary to clearly established Supreme Court precedent when they denied Rhodes’s request

to reinstate Kovac; and third, that the district court erred in 

deciding that Rhodes was entitled to issuance of the writ because the Wisconsin courts unreasonably determined that 

Rhodes engaged in gamesmanship in making his request. 

Our resolution of the third issue obviates the need for us to 

discuss Dittman’s other arguments.

Under the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), 28 U.S.C. § 2254, Rhodes is entitled to habeas corpus relief if the challenged state court decision “was 

contrary to, or involved an unreasonable application of, 

clearly established Federal law” or else “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). Although we review the district court’s judgment 

regarding habeas relief de novo, Mertz v. Williams, 771 F.3d 

1035, 1039 (7th Cir. 2014), our review of the underlying state 

court decision is “highly deferential” and “demands that 

state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quotations omitted). “We must deny the writ if we can posit arguments or 
10 No. 14-1741

theories that could have supported the state court's decision, 

and if fairminded jurists could disagree about whether those 

arguments or theories are inconsistent with Supreme Court 

holdings.” Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013) (citing Pinholster, 131 S. Ct. at 1402). Furthermore, the presumption that a state court’s factual determinations are correct can 

be rebutted only with clear and convincing evidence. 

28 U.S.C. § 2254(e)(1). Such determinations are “not unreasonable merely because the federal habeas court would have 

reached a different conclusion in the first instance.” Burt v. 

Titlow, 134 S. Ct. 10, 15 (2013) (quotations omitted).

The district court recognized that at least one valid argument supported the determination of the Wisconsin Court 

of Appeals that the trial court properly denied Rhodes’s request to reinstate Kovac: the request was untimely. It was 

correct to do so. Faced with a defendant who declares herself 

legally incompetent on the threshold of trial, the court must 

step back and assess the situation as a whole, including potentially “serious inconvenience to judge, jury, opposing 

counsel, witnesses, and other litigants.” United States v. Tolliver, 937 F.2d 1183, 1187 (7th Cir. 1991) (quotations omitted). 

This is true even if a defendant wants a continuance for the 

purpose of obtaining counsel. Id. at 1188; see also United 

States v. Turk, 870 F.2d 1304, 1307 (7th Cir. 1989); United States 

v. Solina, 733 F.2d 1208, 1211–12 (7th Cir. 1984) (a pro se defendant who “at the last minute ... gets cold feet and wants a 

lawyer to defend him ... runs the risk that the judge will 

hold him to his original decision in order to avoid the disruption of the court’s schedule that a continuance granted on 

the very day that trial is scheduled to begin is bound to 

cause”). See generally Morris v. Slappy, 461 U.S. 1, 11 (1983).
No. 14-1741 11

That is exactly what the state court did in Rhodes’s case. 

It accepted Rhodes’s waiver of his right to counsel on April 6, 

2007. His trial was to begin on May 7. Not until three days 

before that did Rhodes write to request that Kovac represent 

him. The trial judge was unable to deal with this request until day one of trial, when it denied Rhodes’s request. At that 

point, as the Wisconsin Court of Appeals noted, at least a 

dozen witnesses—some of them inmates—were waiting to 

testify. The district court recognized the eleventh-hour nature of the request and agreed with the Wisconsin Court of 

Appeals that it was not an abuse of discretion for the trial 

judge to deny Rhodes’s request for that reason.

Where the court erred was in failing to recognize that this 

independent reason disposes of the habeas corpus petition. 

Section 2254(d) focuses on the ultimate decision of the state 

court, not on parts of a written opinion that might in isolation appear to be misguided but that in the end are not necessary to the outcome. See 28 U.S.C. § 2254(d)(2) (writ may 

not be granted unless state court’s adjudication “resulted in a 

decision that was based on an unreasonable determination of 

the facts” (emphasis added)). As we often have noted, we 

review judgments, not opinions. See Rubel v. Pfizer Inc., 

361 F.3d 1016, 1019–20 (7th Cir. 2004); Azeez v. Fairman, 

795 F.2d 1296, 1297 (7th Cir. 1986); see also Jennings v. Stephens, 135 S. Ct. 793, 799 (2015). Neither the state courts nor 

the district court offered any reason to think that the timeliness decision was affected by the concern about gamesmanship or manipulation.

Because the state court explicitly provided a theory that 

supported its decision (the untimeliness rationale), we must 

deny the writ. Kidd, 734 F.3d at 703. As the Supreme Court 
12 No. 14-1741

has noted, the federal courts have “no power to review a 

state law determination that is sufficient to support the 

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). 

The Wisconsin Court of Appeals relied on a precedent from 

that state’s supreme court advising trial judges to consider 

the timeliness of a request to substitute counsel and to be 

watchful for delay tactics arising from such requests at the 

eleventh hour. See State v. Lomax, 432 N.W.2d 89, 91 (Wis. 

1988). This assures us that the timeliness rationale was an 

independent and adequate ground for the state court’s decision. See Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 

2010).

Moreover, AEDPA forecloses the type of searching analysis of a non-critical part of a state-court opinion that the district court undertook here. The district court was required by

28 U.S.C. § 2254(e)(1) to presume that the state court’s factual 

determinations were correct. Those findings may be set aside 

only on the basis of clear and convincing evidence to the 

contrary. Even assuming that the district court was correct 

that Rhodes’s requests were not “mutually exclusive” was 

erroneous, the state court’s contrary conclusion was not necessary to its decision. We add that we are hard-pressed to see 

why this factual assessment of the record was so far out of 

bounds that it qualified as “unreasonable” under AEDPA. 

Viewed deferentially, the record contains some support for 

the state court’s finding that Rhodes had a history of equivocal behavior regarding his representation and that his timing 

was suspicious. It is worth noting as well that Kovac did not 

file an appearance on behalf of Rhodes before trial began.

Instead, both Rhodes and Kovac were content to write letters 

before trial, and then pepper the judge with requests and 

motions after the trial began.
No. 14-1741 13

Before concluding, we must underscore the importance 

of the standard of review to our decision. We are making no 

comment on how we might have assessed either the timeliness of Rhodes’s efforts to retain Kovac, starting from the 

April 18 communication, or the nature of his tactics. That is 

because our independent view is neither here nor there. As 

we have observed in the past, AEDPA requires more than 

simple error before a lower federal court can upset a statecourt decision. See, e.g., Hardaway v. Young, 302 F.3d 757, 759 

(7th Cir. 2002) (reversing grant of writ despite court’s “gravest misgivings and only in light of the stringent standard of 

review” of AEDPA in question of whether to suppress 14-

year-old’s confession to murder).

III

Because the Wisconsin appellate court’s determination 

that Rhodes waited too long to renew his request for counsel 

was a reasonable and sufficient ground for its decision, and 

there was no need on these facts to inquire further, the district court should not have issued the writ of habeas corpus. 

We therefore REVERSE its judgment.