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 educationand 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 encouragement 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

askedwhether 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 concluded 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 communication 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.” Additionally,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 allowed 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 courtreminded Freeman that disagreement withFoster

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 ultimately, 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.Thedistrict court concludedthat Freeman’s

self-representation claim was barred under 28 U.S.C. § 2254(d)

because the Illinois Appellate Court found he did not unequivocally 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 adjudication “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 unreasonable, 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 Freeman’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

Farettamade clearthat 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, competent, 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 limitededucational 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 reasonableness of that analysis. 
No. 16-1229 11

B. The IllinoisAppellate Court’s Holding that Freeman’s

Motion to Proceed Pro Se was Not Unequivocal

The Illinois Appellate Court affirmed the denial of Freeman’s motion because his “request for self-representation did

not constitute an unequivocal invocationofhis 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 Amendment 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.” Moreover, 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-representation: “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 itdidreference 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 equivocationinFaretta’s request for self-representation even

though Faretta had previously beenappointedcounsel. Faretta,

422 U.S. at 807 (noting Faretta initially was appointed counsel

at his arraignment). A conclusion that Freeman vacillated on

representinghimselfbecause of priorrepresentationis 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

requestto appoint stand-by counsel does not make that request

equivocal. In fact, Faretta explicitly contemplates that a defendant 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 IllinoisAppellate Court’s reliance on Freeman’s requestfor

stand-by counselinreaching 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

conclusionthat Freeman’s request was based on his dissatisfaction 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 orits 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-representation 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 premised on precisely those grounds. See Batchelor v. Cain, 682

F.3d 400, 408 (5th Cir. 2012).

Moreover, Freeman did not open himself up to equivocation 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, ordinarily 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 unreasonable 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 letterto 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 Acquiesced to Representation by Sarley, and Waived the

Right to Self-Representation 

On appeal, the State advances a distinct basis from equivocation 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-representation. 

Whether a defendant waivedhis rightto 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 alternative 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 defendant’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 selfrepresentation”); 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.