In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2777

DAVID ARREDONDO,

Petitioner-Appellant,

v.

PETER HUIBREGTSE, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-C-559—Lynn Adelman, Judge.

____________

ARGUED MAY 28, 2008—DECIDED SEPTEMBER 8, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD,

Circuit Judges.

RIPPLE, Circuit Judge. David Arredondo was convicted

by a Wisconsin jury of first-degree intentional homicide

and second-degree sexual assault. The Wisconsin trial

court sentenced him to life without the possibility of parole

on the homicide charge and twenty years’ consecutive

imprisonment on the sexual assault charge. After exhausting his direct and collateral remedies in state court,
2 No. 07-2777

Mr. Arredondo filed in the district court a petition for a

writ of habeas corpus under 28 U.S.C. § 2254. The district

court denied his petition. Mr. Arredondo timely filed a

notice of appeal and obtained a certificate of appealability.

For the reasons set forth in this opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A.

On May 8, 1997, Desiree Klamann’s naked body was

found wrapped in a comforter in a garbage dumpster.

Klamann was last seen alive, in the company of Mr.

Arredondo, on May 4, 1997. The police discovered Mr.

Arredondo’s semen on the comforter. The police searched

the apartment of Thomas Garza, where Mr. Arredondo

had stayed with some frequency. They discovered that

someone recently had painted the lower half of the walls

of Mr. Arredondo’s bedroom, but the police nevertheless

discovered blood, later determined to be Klamann’s, on

one of the moldings.

Thereafter, Mr. Arredondo was charged with the

murder and sexual assault of Klamann, and he pleaded

not guilty. At trial, the State called several witnesses,

including Thomas Garza. Garza testified that, on May 4,

1997, he returned to his apartment at 9:30 or 9:45 p.m.

While Garza was in the kitchen, he observed Mr.

Arredondo run naked from his bedroom to the bathroom.
No. 07-2777 3

Garza asked Mr. Arredondo what was going on, and Mr.

Arredondo responded that he had to go to the bathroom

and could not wait. Afterwards, both Mr. Arredondo and

Garza went to their respective bedrooms. Garza was

watching television, and he fell asleep. He testified that

he heard a woman’s voice while he was sleeping, but he

could not be sure whether the voice had come from

Mr. Arredondo’s bedroom because the television had

remained on.

The State also called as a witness Kurt Moederndorfer,

Mr. Arredondo’s former cellmate at the Milwaukee

County Jail. Moederndorfer testified that Mr. Arredondo

had told him about the Klamann murder. According to

Moederndorfer, Mr. Arredondo met a woman at the Cinco

de Mayo festival, and she and Mr. Arredondo spent the

day drinking together. Moederndorfer testified that Mr.

Arredondo had told him that he had convinced the

woman to go home with him, took her into his bedroom

and made sexual advances toward her. When the woman

resisted, Mr. Arredondo told Moederndorfer that he

(Mr. Arredondo) had grabbed her by the throat, choked her

and forced her to have sexual intercourse with him.

Moederndorfer testified that he had asked Mr. Arredondo

whether the police had any evidence of the crime, and

Mr. Arredondo replied that he had painted the walls

and disposed of the mattress and an old rug in a dumpster.

After the State rested, the trial court excused the jury

and engaged in the following colloquy with Mr. Arredondo

and his counsel regarding whether Mr. Arredondo

would testify. We set forth that colloquy in its entirety

because it is so central to our decision:
4 No. 07-2777

Mr. Arredondo’s counsel. 1

The prosecutor. 2

THE COURT: . . . . It is my understanding the

defense has two very brief witnesses to present before lunch and

then the defendant will at that

time make a decision about testifying. Is that right?

MR. SCHATZ: That’s correct. 1

THE COURT: Has any preliminary decision been

made in that regard?

MR. WILLIAMS: Let’s make the record before lunch 2

if we can.

THE COURT: I’d like to so we know what we’re

doing over the lunch break, so the

decision should be made before

the lunch break. It is my understanding the defendant has

elected not to testify although

wants [sic] to reserve the right to

change after these two witnesses

testify. Is that right?

MR. SCHATZ: The defendant’s elected not to testify, Your Honor.

THE COURT: And that’s a definite decision?

MR. SCHATZ: That’s a definite decision. I would

say 99% definite. I don’t expect
No. 07-2777 5

anything from these two witnesses

that would change his mind, but

you never know.

THE COURT: We can address it again after the

witnesses testify, but let me confirm with you, Mr. Schatz, that

you have discussed the defendant’s options with him in that

regard.

MR. SCHATZ: I have, Your Honor.

R.15 at 2-3. The court then questioned Mr. Arredondo

as follows:

THE COURT: And Mr. Arredondo, I need to confirm with you that you have discussed your decision regarding

testifying in this case with your

counsel and the options that you

have in that regard. You have done

so?

DEFENDANT: Yes, Your Honor.

THE COURT: You understand that you have an

absolute constitutional right not

to testify in this case and if you

decide, as evidently you have decided, not to testify in this case, the

jury will be instructed that they

cannot hold that against you. They

cannot draw any conclusions

from that. Do you understand?
6 No. 07-2777

DEFENDANT: Yes, Your Honor.

THE COURT: Do you also understand, Mr.

Arredondo, that you have a corresponding right to testify and take

the witness stand in your own defense. If you do that, you would

be subjecting yourself to crossexamination. Do you recognize

that as well?

DEFENDANT: Yes, Your Honor.

THE COURT: Knowing that you have these corresponding rights and how they

apply here and in consultation

with your counsel, you have made

the decision not to testify in this

case, correct?

DEFENDANT: Yes, Your Honor.

THE COURT: And although that decision has

been made in consultation with

your counsel, it is nonetheless,

your own decision; is that correct?

DEFENDANT: Yes, Your Honor.

THE COURT: All right. Let’s proceed.

R.15 at 3-4.

Mr. Arredondo then presented two witnesses after

which the defense rested. The court made no further

inquiry regarding whether Mr. Arredondo would testify.

The prosecutor indicated that the State would not
No. 07-2777 7

present rebuttal testimony. The court then advised the

jury that the evidentiary phase of the trial was complete

and recessed for lunch. Immediately after lunch, however,

Mr. Arredondo advised the court that he wished to testify:

THE COURT: All right. The record should reflect

we are now back on the record. . . .

DEFENDANT: Your Honor, excuse me, Your

Honor. I did not understand

very well about when you were

asking me the questions. My attorney advised me to say yes, but

I didn’t understand the question

that I was yes-ing to when we

ended about an hour or two hours

ago.

. . . .

THE COURT: You’re changing your mind about

your decision to testify?

DEFENDANT: Yes, ma’am.

. . . . 

DEFENDANT: Yes, I did not understand. When

you were asking me about the

rights or whatever about testifying—

THE COURT: Right.

DEFENDANT: I did not understand. And I need

to take that back, the yes answer

that I gave you and tell you no,
8 No. 07-2777

I do need to testify because the

only one that can defend David

Arredondo today is David

Arredondo.

THE COURT: Have you talked to your attorney

about this?

DEFENDANT: I told him and he said no, I could

not, but we had an argument earlier this afternoon when I was telling him about it, and he said he

didn’t give a shit what I did at this

point, and I took it as he was not

letting me understand what he

was coming from.

THE COURT: All right. Mr. Schatz.

MR. SCHATZ: Your Honor, that’s entirely false.

Since the end of court and, of

course, I can’t discuss whatever

Mr. Arredondo and I discussed in

confidence. We have discussed

quite a bit about whether he would

take the stand and testify or not.

I told him what the ramifications

would be. We discussed it quite a

bit this morning in closed quarters

even during the trial. All I can

say is Mr. Arredondo made the

decision not to testify. I concur

in that decision—
No. 07-2777 9

DEFENDANT: With his help, Your Honor. He

told me you’re not testifying and

I was confused. I did not know—

I did not understand, ma’am.

THE COURT: I don’t want to get involved or in

the middle of a dispute between

attorney and client, but I need to

make a record of what has transpired. Evidently you have

changed your mind at this point

in your decision not to testify in

this case. Evidently that’s also

against advice of counsel apparently, and I don’t know if the

state has a position on that.

MR. WILLIAMS: They rested.

THE COURT: True.

MR. SCHATZ: That’s right. And all if [sic] can say

is, Your Honor, I rendered my advice, my professional advice to

Mr. Arredondo not to testify. This

is not something that just came

about this morning. This is something which has been—which we

have discussed—which we have

discussed throughout my representation with him and throughout the day and throughout yesterday.
10 No. 07-2777

Regarding Mr. Arredondo not understanding or that he never saw

me again after, your bailiffs can

certainly—your bailiffs can certainly attest to the fact that after

we broke this morning, I was in the

back with Mr. Arredondo while

he was in the bullpen. We met

back there this morning after we

broke for maybe 20 minutes, half

an hour. I fully explained everything to him at that point as far as

whatever questions he may have.

I believe I’ve answered all the

questions.

Regarding lesser included offenses,

as was stated earlier, I don’t believe there is anything in the

record to justify—

THE COURT: I don’t think that’s the issue at this

point.

DEFENDANT: I did not understand—

MR. WILLIAMS: What maybe I would ask is we take

a break and Mr. Schatz and Mr.

Arredondo go back and see if they

can resolve their difference.

THE COURT: That’s what I would suggest. Why

don’t you have a brief conversation

in the bullpen about this issue, and
No. 07-2777 11

counsel and I will talk about the

change in this turn of events. We’ll

be in recess.

(Long recess)

THE COURT: All right. We’re back on the record. . . . I need to confirm with

you, Mr. Arredondo, whether it is

still your intention to attempt

to revoke your previously made

decision to not testify in this case.

Is that still your intention at this

time?

DEFENDANT: It is my intention to testify, yes,

Your Honor.

THE COURT: All right. And you discussed this

further during this recess with

your counsel, Mr. Schatz; is that

correct?

DEFENDANT: Yes, Your Honor.

THE COURT: All right. Mr. Schatz, is that correct, you discussed that with your

client?

MR. SCHATZ: Yes, it is, Your Honor. He did express his desire to me to essentially

reopen the defense case and be

allowed to testify.

THE COURT: All right. I need to inquire about

certain things, first of all. I have
12 No. 07-2777

during this recess attempted to

find some Wisconsin case law on

this situation, and I have not been

successful in doing so. I haven’t

found any case law that governs an

attempt to revoke a previously

made decision not to testify, and

I don’t believe there is any Wisconsin case law on that point based

on my limited and brief search

over the course of the last 45 minutes or so. In any event, it seems to

me to be controlled by a couple

different factors.

Number one, whether the defendant’s previously announced decision was knowing and voluntary

and was a knowing and voluntary

waiver of the constitutional right

to testify.

And number two, what prejudice

there would be to the state and

the system if allowing the defendant—if the court allowed the defendant to revoke that decision. So

it depends on those various factors.

I have also had the court reporter

transcribe the discussion and colloquy on the record that I had with

the defendant concerning his right
No. 07-2777 13

to testify or not to testify in this

case, and I have also taken the liberty of consulting the previous

transcript of the trial in the Kim

Strandberg episode at which the

defendant elected to testify, and

I had practically the same discussion and colloquy on the record

with the defendant at that time.

During the course of this trial

when I did elicit from the defendant his decision in this regard, he

made an unequivocal decision

that it was his decision not to testify in this case and that he made

it in consultation with counsel, but

it was, nonetheless, his decision,

and he understood what his options were in that regard. There

was a qualifier put on that by

counsel having to do with this being a 99 percent decision, that he

might change his mind after the

two defense witnesses testify, but

that wasn’t anticipated.

The record should reflect that

I observed a conversation between

attorney and client after the two

defense witnesses testified which

appeared to be a conversation con-
14 No. 07-2777

cerning the defendant’s previously

made decision not to testify and

whether that was still the case, and

then the record reflects that the

defense rested. I need to confirm,

Mr. Schatz, that that is indeed

what was occurring during that

very brief off the record consultation between you and Mr.

Arredondo before you rested your

case. Is that correct?

MR. SCHATZ: Before I answer that, Your Honor,

the brief conversation Mr.

Arredondo and I did have was still

governed at that point by attorney-client privilege, so I can, if that

privilege, if that privilege for that

very limited perhaps 15, 20 second

discussion or whatever it was is

waived, I can state for the record

what it was about.

THE COURT: Mr. Arredondo? Well, I would

construe the present situation to

constitute a per se waiver of the

attorney-client privilege for this

limited purpose. The defendant is

maintaining at this time that he

didn’t know what he was doing

when he waived his right to testify

in this case, and so in that sense we
No. 07-2777 15

are in almost a postconviction

type posture in which a waiver

of the attorney-client privilege

for the limited purpose of inquiring into what transpired between

attorney and client is deemed

made by the defendant, so that is

the situation I will find that we are

in and ask you to confirm or deny,

whichever is the case, that that is

indeed what was discussed.

MR. SCHATZ: I will consider that to be a court

order. Yes, after the last defense

witness testified, and I believe that

was Mr. Erwine, and he left the

witness stand just before resting,

I did make a final confirmation

with Mr. Arredondo. I asked him

this is the last chance, are you sure

you do not want to testify. He said,

“I don’t want to testify.” At that

point we rested.

THE COURT: All right. With that supplementation of the record, I need to

know, Mr. Williams, what your

situation is as far as prejudice to

the state by the defense attempt

or the defendant’s attempt to reopen his case and take the witness

stand in his own defense in this

case.
16 No. 07-2777

MR. WILLIAMS: The witnesses were released, and

whether they can be relocated or

not, I believe they probably could.

I don’t know what difficulty there

would be. I know we’ve relocated

some of the witnesses, but that’s

basically the posture we’re in. We

released the witnesses at noon.

THE COURT: So at this point not all of the potential rebuttal witnesses have been

relocated.

MR. WILLIAMS: All of them have not been relocated at this point.

THE COURT: All right. And it was my understanding that there would be upwards of 10, perhaps as many as

15 rebuttal witnesses.

MR. WILLIAMS: The possibility exists of about 10

rebuttal witnesses.

THE COURT: All right. It also should be noted

that we have a sequestered jury in

this case which now has been kept

waiting in the jury room for the

totality of the afternoon so for almost three and a half hours while

these issues were discussed and

while we were preparing jury instructions to proceed to the final

phase of the case, so that’s also a

significant factor.
No. 07-2777 17

Based on my review of the transcript of this proceeding and what

the defendant indicated to me in a

very unequivocal fashion was his

decision and his firm decision not

to testify in this case made in consultation with counsel and with

the full awareness of all his options

in that regard, and based on my

review of the transcript of his prior

trial where he made a different

sort of decision but based on similar consultation with counsel and a

similar colloquy with me concerning that issue, and based on what

has just been made as a supplementation of the record by Mr.

Schatz as to what transpired between attorney and client before

the defense finally rested its case in

this matter, I will find the defendant made a knowing and voluntary and irrevocable decision not to

testify in this case, and his request

to reopen his case in order to take

the witness stand and testify in his

own defense is denied. This is also

based on the substantial prejudice

that would exist to the state and

the system and the sequestered

jury in order to reopen the case at
18 No. 07-2777

this time. I think the defendant

knew full well what he was doing—

DEFENDANT: You’re wrong, Your Honor. I did

not know.

THE COURT: His decision to testify or not to

testify in this case, that decision is

not capable of being revoked, so

your request, Mr. Arredondo, in

this regard is denied. It is, however, too late in the day to proceed

with closing arguments, so we will

recess until 9 o’clock tomorrow

morning at which time we will

proceed with instructions and

closings.

MR. SCHATZ: One thing for the record, Your

Honor, before we close.

DEFENDANT: Ineffective counsel.

MR. SCHATZ: My client did have one concern,

and just for the record, all chambers conferences between Mr. Williams, myself, and Your Honor

have been doing nothing more

than discussing issues of law, jury

instructions and the like. Do you

concur, Mr. Williams?

MR. WILLIAMS: Yes.
No. 07-2777 19

MR. SCHATZ: And I imagine you concur, Your

Honor.

THE COURT: Yes, we have been spending this

time or I have been spending this

time looking for Wisconsin case

law for guidance on this issue and

weighing the options and the

issue of whether or not the defendant knowingly and voluntarily

made his decision not to testify in

this case and also considering the

prejudice that existed to the state,

and the decision’s been made.

We’ll see you tomorrow morning

at 9 o’clock to proceed with the

final phase of the trial.

MR. WILLIAMS: The only other thing, I think Mr.—

I don’t know if the court would

deem it a waiver for time privileges, but Mr. Schatz I think could

perhaps go through a history of

how he’s advised the defendant

of his right to testify.

THE COURT: We can do that briefly. I don’t

think it’s substantially necessary.

It’s something that may or may not

be litigated at a later date, but if

you wish to make a brief record of

when you’ve discussed this issue

with him.
20 No. 07-2777

MR. SCHATZ: Well, Your Honor, the only thing—

DEFENDANT: Never came and visited me. How

is he gonna—

MR. SCHATZ: Your Honor, in response to Mr.

Arredondo’s statement, there are

certainly records at the Milwaukee

County Jail. People have to show

identification to come in and out.

Attorney visits, the like—

DEFENDANT: Ineffective counsel, that’s what

it is.

MR. SCHATZ: I have absolutely no doubt that if

anybody were to check the jail

records, they will find a record of

every visit I have made to Mr.

Arredondo. I have received collect

telephone calls at my phone from

Mr. Arredondo. We have discussed this entire week regarding

his decision of whether to testify,

whether not to testify. I have offered my professional opinion that

I don’t believe he should. I have

advised him—

DEFENDANT: Told me not to today, not to testify.

I wanted to testify. He told me not

to testify. He says no, they’re

gonna find you guilty, and I don’t

want to swear in the courtroom,
No. 07-2777 21

but that’s what he said to me today, Your Honor. I wanted to testify and tell the Klamann family

and the jury that I’m not guilty of

this. I’m sorry, Your Honor, but

you’re being very unfair denying

it.

THE COURT: Anything else, Mr. Schatz?

MR. SCHATZ: Very briefly. Every time I have

discussed Mr. Arredondo’s decision to testify as well as options—

DEFENDANT: He lies. Lies. Lies.

MR. SCHATZ: —as well as options any criminal

defendant has, it’s always been

my practice, however, long I have

practiced law, 13 years now, I have

explained to every single client

there are certain decisions which

only you can make in any type of a

criminal trial. I will give you my

advice of what I feel you should

do and tell you why—what I base

my advice upon, but the ultimate

decision is yours, and that’s what

happened in this—

DEFENDANT: Why you got to continue to lie in

front of—

THE COURT: The record’s been made. We’re in

recess until 9 o’clock tomorrow

morning.
22 No. 07-2777

DEFENDANT: Lies. I’m innocent. And I can prove

it to you guys.

R.15 at 4-10.

The next morning, Mr. Arredondo’s counsel stated that

Craig Pradarelli, a private investigator, had joined him

in court:

THE COURT: It’s my understanding that the

reason that he is presently at counsel table is because your [sic] wish

to supplement the record, Mr.

Schatz—

MR. SCHATZ: That’s correct.

THE COURT: —that we made yesterday afternoon, in particular concerning certain accusations at the level of preparedness and the amount of time

that was put to the preparation of

this case in particular as it relates

to his decision to testify or not

to testify.

MR. SCHATZ: That’s correct.

THE COURT: Go ahead.

MR. SCHATZ: First, Your Honor, as I stated, Mr.

Pradarelli was approved and appointed by the state public defender’s office to assist me on this

case.

It’s my understanding that Mr.

Pradarelli met with Mr. Arredondo
No. 07-2777 23

twice during the preparation of

this case. I also met with him

twice during the preparation. It’s

my understanding of course that

Mr. Arredondo gave whatever

certain information to Mr.

Pradarelli which he did follow up

on; that Mr. Pradarelli gave me all

the results of his investigation

and his follow-up and they were

factored into the trial preparation

and assistance in this case.

I would also state for the record

that besides meeting with Mr.

Arredondo twice, special visits in

the jail, I also met with him whenever we were here in court; I believe there were three court appearances prior to trial here in

court. I’ve also spoken to him via

collect telephone calls both in my

office and at my home, I don’t

know the exact number of times; a

fair estimate, I would say about a

dozen if not more. Mr. Arredondo

and I have discussed in detail over

the course of preparing for this

trial in detail many, many times

about his right to testify, his right

not to testify. Specifically more

this week during the trial, we have
24 No. 07-2777

discussed every day his right to

testify.

I believe that based on—Well,

based on information that Mr. Williams offered to me earlier in the

week, which was in fact true, certain evidence that he may or may

not use and then he told me he

made a decision not to use,

we’ve—I’ve discussed with Mr.

Arredondo and I believe it was as

early as Tuesday or Wednesday

this week that the decision was

made not to testify. Even though

every day I still discussed with

him his right to testify, that decision did not change since Tuesday

or Wednesday of this week, and as

stated yesterday on the record at

the end of the day just before the

defense rested, you did note that

Mr. Arredondo and I had a brief

conference, a brief, a brief conference here at counsel table. I confirmed with him, I said “Essentially this is your last chance. Do

your [sic] or do you not want to

testify.” He indicated he did not

want to testify—

DEFENDANT: That’s a lie.
No. 07-2777 25

MR. SCHATZ: —then we rested.

. . . .

THE COURT: Mr. Williams, any further record

you wish to make on this?

MR. WILLIAMS: No.

THE COURT: I think the record should be very

clear, to the extent it wasn’t made

clear yesterday, that I regard Mr.

Arredondo’s conduct yesterday

afternoon on this issue of whether

to testify or not to testify simply

another attempt to manipulate

rather than any change of heart

or any misunderstanding.

There is no support for your claim,

Mr. Arredondo, that you misunderstood, and there is no support

for your claim that you were

doing what your attorney told you

and not what you wanted to do.

The record fully supports my conclusions in this regard. You told

me directly and in an unequivocal

fashion that you did not wish to

testify.

DEFENDANT: Let me prove my opinions to—

THE COURT: Mr. Arredondo, you may not interrupt me nor anyone else in this
26 No. 07-2777

courtroom or I will have to eject

you from the courtroom if you

continue with this behavior. Is

that clear?

DEFENDANT: Yes, Your Honor.

THE COURT: There was no honest change of

heart in this case. This is an attempt to manipulate the justice

system.

DEFENDANT: No.

THE COURT: I’m not through. If you interrupt

again, I will eject you from the

courtroom.

The defendant was fully advised

of his rights in this regard both by

me and by his counsel. He was

advised of the same rights in

the prior trial involving Kim

Strandberg who testified in this

case. He represented in the prior

trial a full understanding of his

rights to testify or not to testify

in that matter. His attorney represented on the record in that matter

that he fully understood his rights

and options in that regard, and

I am fully satisfied that the defendant understands what the situation was, understood what the
No. 07-2777 27

situation was, made an informed,

knowing and voluntary decision

in that regard, which under the

circumstance can lead only to the

conclusion that this is theatrics

and that this is playing for the

cameras, perhaps, and that this is a

gross attempt to manipulate the

system and I cannot allow it under

the circumstances. This is not simply an honest change of heart under any stretch of the imagination.

So the record should be very clear

on that point for any future appellate purposes.

Anything anyone else wishes to

add?

MR. WILLIAMS: No, Judge.

MR. SCHATZ: No, Your Honor.

R.15 at 10-13.

A jury found Mr. Arredondo guilty of first-degree

intentional homicide and second-degree sexual assault.

The Wisconsin trial court sentenced him to life without

the possibility of parole on the homicide charge and

twenty years’ consecutive imprisonment on the sexual

assault charge.
28 No. 07-2777

B.

Mr. Arredondo filed this action under 28 U.S.C. § 2254.

As relevant here, his petition claims that he was deprived

of his constitutional right to testify and that his trial

counsel was ineffective.

The district court determined that the Court of

Appeals of Wisconsin had not acted contrary to, or unreasonably applied, clearly established Supreme Court

precedent in holding that Mr. Arredondo had waived

his right to testify. The district court then determined

that the Wisconsin appellate court also had not unreasonably applied clearly established federal law, Rock v.

Arkansas, 483 U.S. 44 (1987), in holding that the trial court

had not erred when it refused to permit Mr. Arredondo

to retract his waiver. It then determined that, even if

the Wisconsin appellate court had erred, the error was

harmless.

Mr. Arredondo requested a certificate of appealability

on all of the issues that he had raised before the district

court. The district court, however, determined that only

two issues satisfied 28 U.S.C. § 2253(c). First, whether

the Court of Appeals of Wisconsin unreasonably applied

Rock when it found that Mr. Arredondo’s right to testify

had not been violated when the trial court declined

his request to reopen the case so that he could testify.

Second, whether such error is subject to harmless error

analysis.

Mr. Arredondo timely appealed to this court.
No. 07-2777 29

II

DISCUSSION

Mr. Arredondo raises three issues on appeal. First, he

contends that the Wisconsin appellate court unreasonably applied clearly established Supreme Court precedent when it determined that he had knowingly and

voluntarily waived his right to testify. Second, Mr.

Arredondo contends that the appellate court unreasonably applied Rock when it refused to allow him to

retract that waiver. Third, Mr. Arredondo claims that

the district court erred in applying the harmless error

doctrine to a violation of a defendant’s right to testify.

A.

The district court did not grant Mr. Arredondo a certificate of appealability on the issue of whether the Wisconsin

appellate court’s decision that Mr. Arredondo had knowingly and voluntarily waived his right to testify was

contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. Mr. Arredondo

has briefed the issue, however, and, in doing so, he has

implicitly requested that this court amend the certificate.

See Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir. 1998).

The standard governing a court’s decision to grant

a certificate of appealability is set forth in 28 U.S.C.

§ 2253(c)(2). A court may grant a certificate if the applicant makes a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant

has made a “substantial showing” where “reasonable
30 No. 07-2777

jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’ ” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 & n.4 (1983)). We agree with

the district court that Mr. Arredondo has not met this

standard with respect to his claim that his waiver of the

right to testify was not knowing and voluntary.

As the district court pointed out, the Supreme Court of

the United States never has held that a trial court must

engage in a personal colloquy with a defendant to determine whether he wishes to testify or that a waiver of the

right to testify must occur formally on the record. Indeed,

in United States v. Brimberry, 961 F.2d 1286 (7th Cir. 1992),

we held that “courts have no affirmative duty to determine whether a defendant’s silence is the result of a

knowing and voluntary decision not to testify.” Id. at 1289-

90 (quoting United States v. Thompson, 944 F.2d 1331, 1345

(7th Cir. 1991) (collecting cases)). Here, the trial court,

acting within its discretion, did engage Mr. Arredondo in

a colloquy to determine whether he voluntarily and

knowingly was waiving his right to testify. After Mr.

Arredondo satisfied the trial court that his waiver was

entered voluntarily and knowingly, no clearly established Supreme Court precedent required the court to

engage in a second colloquy immediately after the two

last witnesses finished testifying and before the defense

rested. Therefore, Mr. Arredondo cannot show that

reasonable jurists could debate whether the Wisconsin

courts acted “contrary to” clearly established Supreme
No. 07-2777 31

Court precedent by not undertaking a second personal

colloquy with him to determine whether he wished to

waive his right to testify. See 28 U.S.C. § 2254(d)(1).

Mr. Arredondo nevertheless contends that the Wisconsin courts unreasonably applied Brady v. United States,

397 U.S. 742, 748 (1970), because the record establishes

that he did not knowingly and voluntarily waive his right

to testify. In support of this contention, Mr. Arredondo

notes that, during the colloquy with the Wisconsin trial

court, his counsel, Mr. Schatz, explained to the trial court

that, although Mr. Arredondo’s decision not to testify

was nearly definite, there was a possibility that he would

change his mind after the defense presented its two

final witnesses; the trial court then stated that it would

revisit the issue. From this colloquy, Mr. Arredondo

explains, it is evident that he believed that any waiver

of his right was conditional. Because the trial court never

revisited the issue, Mr. Arredondo asserts that he did not

know that his waiver, prior to the presentation of the

last two witnesses, was final.

Mr. Arredondo’s contention that he believed that any

waiver of his right to testify was conditional is contradicted by the statements made by Mr. Arredondo’s

counsel to the trial court. Specifically, the trial court

noted on the record that it had “observed a conversation

between attorney and client after the two defense witnesses testified which appeared to be a conversation

concerning the defendant’s previously made decision

not to testify and whether that was still the case, and then

the record reflects that the defense rested.” R.15 at 7. After
32 No. 07-2777

the trial court determined that it would consider

Mr. Arredondo’s position as an implicit waiver of the

attorney-client relationship with respect to this conversation, Mr. Schatz confirmed: “[A]fter the last defense

witness testified, and I believe that was Mr. Erwine, and

he left the witness stand just before resting, I did make

a final confirmation with Mr. Arredondo. I asked him

this is the last chance, are you sure you do not want to

testify. He said, ‘I don’t want to testify.’ At that point [the

defense] rested.” Id. The trial court’s observations, combined with his counsel’s statements, undermine Mr.

Arredondo’s claim that he did not knowingly and voluntarily waive his right to testify or that he understood

that waiver to be conditional. Indeed, Mr. Schatz’s statements on the record indicate that he explained to Mr.

Arredondo that this was Mr. Arredondo’s “last chance”

and asked whether Mr. Arredondo was “sure” that he did

not want to testify. Id. Given this explanation from

counsel, which the Wisconsin trial court credited, we

cannot conclude that “reasonable jurists could debate

whether” Mr. Arredondo’s petition on this issue should

have been resolved in a different manner. Slack, 529 U.S.

at 484.

Mr. Arredondo also contends that “[g]iven his strong

disagreements with trial counsel as represented in the

record regarding his right to testify, Petitioner had to

count on addressing his right to testify with the court

as promised rather than addressing it through his attorney.” Appellant’s Br. at 27. Prior to the defense resting,

however, Mr. Arredondo never voiced to the trial court

any disagreement with counsel regarding his right to
No. 07-2777 33

testify. In fact, prior to the recess, the trial court engaged

in a colloquy with Mr. Arredondo. The court informed

him that he had a “right to testify and take the witness

stand in [his] own defense” and asked him whether

the decision not to testify was his own decision despite

the fact that it had been made in consultation with counsel. R.15 at 3. Mr. Arredondo responded that the decision

not to testify was his own and did not inform the trial court

of any conflict with his trial counsel regarding that decision. Therefore, prior to the recess, the Wisconsin trial

court had no reason to know that there was a disagreement

between Mr. Arredondo and his trial counsel regarding

Mr. Arredondo’s right to testify.

Moreover, although the trial court was made aware of a

disagreement after the recess, Mr. Arredondo’s contention ultimately is reduced to an issue of credibility. The

trial court’s factual findings and the trial transcript

itself undermine Mr. Arredondo’s contention that he

believed that his waiver of the right to testify had been

conditional. The Wisconsin trial court determined that

Mr. Arredondo was attempting to manipulate the proceeding rather than laboring under a misunderstanding of his

right to testify, and the appellate court affirmed the trial

court’s findings. It is evident from the transcript that this

is not a case like Ward v. Sterns, 334 F.3d 696, 706-08 (7th

Cir. 2003), in which the defendant, who supposedly had

waived his right to testify, had mental deficiencies.

Mr. Arredondo comes across as competent, and his numerous verbal exchanges with the trial court indicate that

he has a fair command of the English language. Mr.

Arredondo, in short, cannot rebut the state court’s factual
34 No. 07-2777

finding that he knowingly and voluntarily waived his

right to testify. See 28 U.S.C. § 2254(e)(1) (state findings of

fact are presumed correct and must be rebutted by

clear and convincing evidence).

Mr. Arredondo has not established that reasonable

jurists could debate whether the Wisconsin appellate

court acted contrary to, or unreasonably applied, clearly

established Supreme Court precedent when it determined that the waiver of his right to testify had been

knowing and voluntary. Accordingly, we shall not

enlarge the certificate of appealability.

B.

1.

We review de novo the district court’s denial of a habeas

petition. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir.

2007). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), we may grant habeas relief only

if the state court’s “decision was contrary to, or involved

an unreasonable application of, Supreme Court precedent,”

id., or “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)(2). To grant habeas relief under the “contrary to”

clause, we must find that the state court reached a

result opposite to that reached by the Supreme Court on

materially indistinguishable facts. See Williams v. Taylor,

529 U.S. 362, 405 (2000); Jackson v. Miller, 260 F.3d 769,

774 (7th Cir. 2001). To obtain relief under the “unreason-
No. 07-2777 35

able application” clause, a habeas petitioner must show

that the state court’s decision unreasonably extended a

clearly established Supreme Court precedent to a

context where it should not have applied or unreasonably

refused to extend such precedent to a context where it

should have applied. Jackson, 260 F.3d at 774. The state

court’s factual findings are presumed correct; this presumption can be rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537

U.S. 322, 348 (2003); Barrow v. Uchtman, 398 F.3d 597, 603

(7th Cir. 2005). In short, the state court decision must

be “both incorrect and unreasonable.” Washington v.

Smith, 219 F.3d 620, 628 (7th Cir. 2000) (emphasis in

original); see also Terry Williams, 529 U.S. at 407-08.

2.

Mr. Arredondo submits that the Court of Appeals of

Wisconsin unreasonably applied Rock in holding that the

trial court properly had denied his request to retract the

waiver of his right to testify. According to Mr. Arredondo,

Rock held that “restrictions of a defendant’s right to

testify may not be arbitrary or disproportionate to the

purpose they are designed to serve.” Appellant’s Br. at 29

(quoting Rock, 483 U.S. at 55-56). Thus, Mr. Arredondo

contends, the state court was obliged to ask whether “the

interests served” by restricting Mr. Arredondo’s testimony “justif[ied] the limitation imposed on [his] right to

testify.” Id. (quoting Rock, 483 U.S. at 55-56). Analogizing

to this court’s decision in Ortega v. O’Leary, 843 F.3d 258
36 No. 07-2777

(7th Cir. 1988), Mr. Arredondo asserts that the state

court’s conclusion was objectively unreasonable.

The State, on the other hand, contends that the Supreme Court has not applied Rock to circumstances such as

those presented by Mr. Arredondo’s case. It submits

that the rule that Rock clearly established is that “states

‘may not apply a rule of evidence that permits a witness

to take the stand, but arbitrarily excludes material portions

of [the witness’] testimony.’ ” Appellee’s Br. at 9 (quoting

Rock, 483 U.S. at 55). Given this reach, the State contends that Rock does not control whether or under what

circumstances a court, having found properly that a

criminal defendant waived his right to testify, must

honor a defendant’s wish to retract that waiver. Furthermore, the State submits that, in two recent cases, the

Supreme Court has cautioned against over-reading its

precedent in a habeas context, as Mr. Arredondo seeks

to do here. See Carey v. Musladin, 127 S. Ct. 649 (2006); see

also Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam).

In Musladin and Van Patten, the Supreme Court

reversed the judgment of two courts of appeals because

those courts had extended Supreme Court precedent too

far from its original context. In Musladin, the issue was

whether spectators’ conduct in the courtroom had

violated a defendant’s right to a fair trial. The Ninth

Circuit applied the test for state-sponsored courtroom

practices to the spectators’ conduct and concluded that

the defendant’s rights had been violated. The Supreme

Court reversed. It noted that it never had applied the

rule for state-sponsored courtroom practices in the

context of spectator conduct. The Court explained:
No. 07-2777 37

466 U.S. 668 (1984). 3

Given the lack of holdings from this Court regarding

the potential prejudicial effect of spectators’ courtroom

conduct of the kind involved here, it cannot be said

that the state court unreasonably applied clearly

established Federal law. No holding of this Court

required the California Court of Appeal to apply the

test [for state-sponsored courtroom practices] to the

spectators’ conduct here. Therefore, the state court’s

decision was not contrary to or an unreasonable

application of clearly established federal law.

Musladin, 127 S. Ct. at 654 (internal quotation marks and

citation omitted) (alteration omitted).

In Van Patten, the Supreme Court had vacated a decision

of this court and remanded in light of Musladin. In the

original, vacated decision, we had applied United States v.

Cronic, 466 U.S. 648 (1984), which created a narrow exception to Strickland v. Washington that exempted the habeas 3

petitioner from proving prejudice. One circumstance

warranting treatment under the Cronic exception is

when “counsel [is] totally absent, or prevented from

assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659 & n.25. In the original, vacated decision, we applied Cronic in a situation where the habeas

petitioner’s lawyer was not physically present at the

plea hearing but had participated by teleconference

nonetheless. After the Supreme Court remanded the case,

we again reached the same result. The Supreme Court

reversed. It explained that “[n]o decision of this Court . . .
38 No. 07-2777

squarely addresses the issue in this case or clearly establishes that Cronic should replace Strickland in this novel

factual context.” Van Patten, 128 S. Ct. at 746 (citation

omitted). The Court further noted that its “precedents

do not clearly hold that counsel’s participation by

speaker phone should be treated as a ‘complete denial of

counsel,’ on par with total absence.” Id. With these cases

in mind and their guidance as to how far Supreme

Court precedent may be extended for purposes of section

2254(d), we turn to Mr. Arredondo’s contentions.

Mr. Arredondo submits that the Wisconsin appellate

court unreasonably applied clearly established Supreme

Court precedent in affirming the trial court’s decision to

deny him the opportunity to retract his waiver of the right

to testify. Specifically, Mr. Arredondo argues that the

Wisconsin appellate court unreasonably applied the

balancing test that the Supreme Court set forth in Rock. In

Rock, the Supreme Court “granted certiorari to consider

the constitutionality of Arkansas’ per se rule excluding a

criminal defendant’s hypnotically refreshed testimony.”

483 U.S. at 49. In addressing this question, the Court

recognized that a criminal defendant’s right to testify is

grounded in the Fifth, Sixth and Fourteenth Amendments, and it emphasized that this right is “fundamental.”

Id. at 51-53. The Court’s past precedents, the Justices

explained, indicate that, “[j]ust as a State may not apply

an arbitrary rule of competence to exclude a material

defense witness from taking the stand, it also may not

apply a rule of evidence that permits a witness to take the

stand, but arbitrarily excludes material portions” of the
No. 07-2777 39

witness’s testimony. Id. at 55. Nevertheless, the Court

explained,

the right to present relevant testimony is not without

limitation. The right may, in appropriate cases, bow

to accommodate other legitimate interests in the

criminal trial process. But restrictions of a defendant’s

right to testify may not be arbitrary or disproportionate

to the purpose they are designed to serve. In applying

its evidentiary rules a State must evaluate whether

the interests served by a rule justify the limitation

imposed on a defendant’s constitutional right to testify.

Id. at 55-56. The Court went on to conclude that Arkansas’

“legitimate interest in barring unreliable evidence does not

extend to per se exclusions that may be reliable in an

individual case.” Id. at 61.

The Rock balancing test was articulated in a case, and

applied to circumstances, much different from the circumstances in which Mr. Arredondo seeks to employ it.

Rock involved the constitutionality of a state evidentiary

rule that resulted in an arbitrary or disproportionate

limitation on the defendant’s right to offer testimony in

her own behalf. The issue in Mr. Arredondo’s case, in

contrast, is whether a knowing and voluntary waiver of

the right to testify is subject to retraction and, if so, under

what circumstances that retraction may be exercised.

Certainly, no holding of the Supreme Court required the

Wisconsin appellate court to apply Rock’s balancing test

to these circumstances. See Van Patten, 128 S. Ct. at 746

(“No decision of this Court . . . squarely addresses the

issue in this case or clearly establishes that Cronic should
40 No. 07-2777

replace Strickland in this novel factual context.” (emphasis

added)); Musladin, 127 S. Ct. at 654 (“No holding of this

Court required the California Court of Appeal to apply the

test [for state-sponsored courtroom practices] to the

spectators’ conduct here.”); see Hill v. Wilson, 519 F.3d 366,

368 (7th Cir. 2008) (“The Supreme Court has held that a

right becomes ‘clearly established’ only when a course

of decisions has established how the Constitution’s

grand generalities apply to a class of situations.”). Consequently, we believe that Rock, assuming that it is applicable at all—a determination that this case does not

require us to make—is relevant only at a very high degree

of generality. See Hill, 519 F.3d at 368 (noting that the

habeas petitioner was “invok[ing] principles of very

high generality,” and rejecting the argument that a state

appellate court had “transgress[ed] any right ‘clearly

established’ by” the standard of Musladin and Van Patten).

In addition to the level of generality at which Rock is

applicable under these circumstances, we must bear in

mind the proper scope of section 2254’s reach. The Supreme Court has explained that

. . . the range of reasonable judgment can depend in

part on the nature of the relevant rule. If a legal rule is

specific, the range may be narrow. Applications of the

rule may be plainly correct or incorrect. Other rules are

more general, and their meaning must emerge in

application over the course of time. Applying a

general standard to a specific case can demand a

substantial element of judgment. As a result, evaluating whether a rule application was unreasonable
No. 07-2777 41

requires considering the rule’s specificity. The more

general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The

Supreme Court in Rock established a methodology for

reviewing restrictions on a defendant’s right to testify,

but that methodology calls for the balancing of very

general interests. As a result, a state court’s application of

the Rock methodology entails a “substantial element of

judgment,” and the state court, therefore, is entitled to

“more leeway . . . in reaching outcomes in case-by-case

determinations.” Id.

With these principles in mind, we cannot accept Mr.

Arredondo’s contention that the Wisconsin appellate

court’s decision was objectively unreasonable. The appellate court affirmed the trial court’s refusal to allow Mr.

Arredondo to retract his waiver because the retraction

would have prejudiced the prosecution and kept the

jury longer than expected. More important, the Wisconsin

appellate court noted that the trial court had concluded

that Mr. Arredondo was engaging in “theatrics” and a

“gross attempt to manipulate the system,” rather than

laboring under a misunderstanding of his right to testify.

S.A. at 69. “[T]he trial court also found,” explained the

Wisconsin appellate court, that Mr. Arredondo had

“voluntarily g[iven] up his right to testimony.” Id. Finally,

the appellate court explained that “it is clear from

the context of the trial court’s statements that the trial

court did not mean that [Mr.] Arredondo’s decision to

waive his right to testify was irrevocable as a matter of

law.” Id.
42 No. 07-2777

Given the Supreme Court’s explanation of the proper

sweep of section 2254’s “unreasonable application” clause

and given the high level of generality at which the Rock

methodology is applicable here, the state court’s decision

cannot be characterized as objectively unreasonable. As

the Wisconsin appellate court noted, the trial court had

engaged in an extensive colloquy with Mr. Arredondo

informing him that he had a constitutional “right to testify

and take the witness stand in [his] own defense.” R.15 at 3-

4. The trial court confirmed that Mr. Arredondo himself

had “made the decision not to testify in this case . . .

although that decision has been made in consultation

with . . . counsel.” Id. After considering the prejudice to

the prosecution and the delay that the retraction would

have caused, in combination with its finding that Mr.

Arredondo’s request to retract his waiver was an

attempt at manipulating the trial process, the trial court

determined that Mr. Arredondo should not be allowed

to retract his waiver. Under these circumstances, we

cannot conclude that the Wisconsin appellate court’s

decision to affirm the trial court’s decision was objectively unreasonable.

Mr. Arredondo attempts to cast doubt on the trial court’s

assessment of the amount of prejudice to the prosecution

that would have resulted had he been allowed to retract

his waiver. He points out, for example, that the prosecutor had informed the court that, although the State’s

rebuttal witnesses had been excused, it already had

located some of these witnesses and that the other witnesses “probably could” be located. Id. at 8. It bears

emphasis that, to grant Mr. Arredondo habeas relief
No. 07-2777 43

Because this case arises under 28 U.S.C. § 2254(d), we cannot 4

accept Mr. Arredondo’s invitation to engage in the more

rigorous review that we undertook in Ortega v. O’Leary, 843

F.2d 258 (7th Cir. 1988) (undertaking a plenary review of the

state court’s decision and “[a]ssuming that the trial court

improperly denied [the defendant’s] request to testify”). Ortega

arose prior to Congress’ enactment of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), and, therefore, the

(continued...)

under section 2254(d), it is not sufficient that we would

have weighted differently the various interests in conducting de novo the Rock balancing test or even that the

state appellate court’s determination was wrong; Mr.

Arredondo must establish that the appellate court’s

determination was “objectively unreasonable.” Lamon v.

Boatwright, 467 F.3d 1097, 1100 (7th Cir. 2006).

Furthermore, Mr. Arredondo neither explains nor cites

any authority as to why the trial court should have

limited itself to considering only the prejudice that

would have resulted from the failure to locate rebuttal

witnesses while ignoring the delay, expense and manpower required to locate these witnesses. In any event,

the prosecutor also informed the trial court that there

were ten rebuttal witnesses who needed to be relocated

and that he did not know how difficult it would be to

locate the witnesses who had not been found yet. Finally,

the trial court determined that Mr. Arredondo’s attempt

to retract his waiver had been made in bad faith, and,

therefore, the state court did not require an exceedingly

weighty justification for denying Mr. Arredondo’s request.4
44 No. 07-2777

(...continued) 4

court in Ortega was at liberty to apply a much more searching

standard of review than the one to which AEDPA confines us.

In addition, we note that the state trial court in Ortega had not

engaged in a colloquy with the defendant to determine

whether the defendant had knowingly and voluntarily waived

his right to testify and that it had made no findings of fact on

that issue. Id. at 261 (noting that the “record in this case is

devoid of any colloquy between the judge and Ortega on the

nature of the waiver” and that “trial courts must take steps

to insure that important constitutional rights have been voluntarily and intelligently waived”). In this case, by contrast, the

Wisconsin court engaged in a lengthy colloquy on the record

with Mr. Arredondo, informing him of his right to testify and

determining that Mr. Arredondo’s decision not to testify was

his own decision despite being made in consultation with

counsel.

Mr. Arredondo also criticizes the trial court’s failure

to consider the testimony that he would have offered had

he been allowed to retract his waiver. Mr. Arredondo,

however, made no attempt to inform the court as to

what the substance of his testimony would have been.

Indeed, he only stated, “I do need to testify because the

only one that can defend David Arredondo today is

David Arredondo.” R.15 at 4-10. Moreover, given the trial

court’s finding that Mr. Arredondo had voluntarily and

knowingly waived his right to testify, no clearly established Supreme Court precedent required the trial court to

conduct another colloquy with Mr. Arredondo specifically

to determine what his testimony would have been. We

therefore cannot accept Mr. Arredondo’s contention
No. 07-2777 45

that the failure of the Wisconsin appellate court to take

into account the substance of the testimony that he

would have offered constituted an unreasonable application of clearly established Supreme Court precedent.

Conclusion

Mr. Arredondo has not established that reasonable

jurists could debate whether the Wisconsin appellate

court acted contrary to, or unreasonably applied, clearly

established Supreme Court precedent when it determined that the waiver of his right to testify had been

knowing and voluntary. Consequently, we shall not

enlarge the certificate of appealability. Moreover, given the

Supreme Court’s explanation of the proper scope of section

2254’s “unreasonable application” clause as well as the

high level of generality at which the Rock methodology is

applicable here, the state court’s decision cannot be

characterized as objectively unreasonable. Accordingly,

the judgment of the district court is affirmed.

AFFIRMED

9-8-08