In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3995

NEFTALY RODRIGUEZ,

Petitioner-Appellee,

v.

NEDRA CHANDLER, Warden,

Dixon Correctional Center,

Respondent-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 C 2184—Harry D. Leinenweber, Judge.

____________

ARGUED MAY 29, 2007—DECIDED JULY 5, 2007

____________

Before EASTERBROOK, Chief Judge, and WOOD and

WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge. A state judge erroneously

disqualified one of the two lawyers representing Neftaly

Rodriguez, who was convicted of murder and sentenced

to 29 years in prison. Three years ago we held that

this disqualification violated the sixth amendment (applied to the states by the fourteenth) by depriving him of

his chosen counsel, but that such an error does not automatically vitiate the conviction. Rodriguez v. Chandler,

382 F.3d 670 (7th Cir. 2004) (Rodriguez I). A writ of

habeas corpus should issue, we held, only if the error had

an adverse effect on the defense.
2 No. 06-3995

After the Supreme Court denied certiorari, 543 U.S. 1156

(2005), the district court first ruled that Rodriguez bore

the burden of persuasion on this issue and then granted

summary judgment against him after concluding that he

had not adduced any reason to think that the erroneous

disqualification affected the trial. Rodriguez v. Chandler,

No. 02 C 2184 (N.D. Ill. June 21, 2006).

Five days later, the Supreme Court held in United States

v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), that an erroneous failure to allow a defendant’s chosen lawyer to represent him at trial violates the Constitution without regard to consequences—that it is a “structural error” that

always requires a new trial if an objection has been

preserved. The district court then issued a writ of habeas

corpus requiring Illinois to release Rodriguez unless he

is retried within 120 days. We stayed that order to give

the state time for appeal.

In this court the parties limited their briefs to a single

question: whether Gonzalez-Lopez governs not only cases

in which defendant hires one lawyer at a time (the situation in Gonzalez-Lopez) but also the situation in which

defendant has two lawyers. The state’s theory is that one

“counsel of choice” is enough; Rodriguez responds that

Illinois does not limit a (paying) defendant to just one

lawyer and therefore cannot disqualify counsel to come

down to that number.

Rodriguez has the better of this argument. After the

district court in Gonzalez-Lopez refused to allow Low to

represent defendant at trial, he hired Dickhaus—who was,

we must assume, his second choice. Rodriguez had

choices 1 and 2 (Brent and Grimaldi) on hand from the

start; when one was knocked out, the other represented

him at trial. That’s exactly what happened for GonzalezLopez. Illinois does not argue that Grimaldi was #1 in

Rodriguez’s ranking and Brent #2, and it is hard to see
No. 06-3995 3

how a court could distinguish them. It would not have

mattered in Gonzalez-Lopez if Dickhaus had been asked

first and had turned Gonzalez-Lopez away because of a

scheduling conflict, only to take the case later when Low

could not handle the trial. The Supreme Court did not

distinguish among degrees of preference. Fact is that

both Gonzalez-Lopez and Rodriguez found two lawyers

they trusted but were allowed to use the services of only

one. The injury may have been greater for Rodriguez,

who thought that having two lawyers would help (they

could share the work, and two sets of ideas may be better

than one) but ended up represented at trial by just one.

But does Gonzalez-Lopez apply in the first place? Which

decisions supply the governing law, no less than whether

the collateral attack is untimely, is a subject that a

court may and often should raise on its own. See Day v.

McDonough, 547 U.S. 198 (2006). Rodriguez’s conviction became final years before Gonzalez-Lopez was announced, and we know from both Teague v. Lane, 489 U.S.

288 (1989), and 28 U.S.C. §2254(d)(1) that a federal court

should apply the law as it was when the state’s process

ended, not the law as it is when the federal judiciary

turns to the subject. When Rodriguez’s conviction became

final, no decision of the Supreme Court of the United

States treated mistaken disqualification as a structural

error. Our opinion of 2004 discussed the state of the law

during the 1990s and the early part of this decade; it

shows that the law was unsettled, which normally means

that there cannot be federal collateral relief. There was

a conflict among the circuits about how to handle this

situation, and although four Justices concluded in

Gonzalez-Lopez that our solution was sound, see 126 S. Ct.

at 2568 (Alito, J., dissenting), five Justices took a view

more favorable to Rodriguez. Resolution of such uncertainties does not apply retroactively.
4 No. 06-3995

We asked the parties to file supplemental memoranda

concerning the retroactive application of Gonzalez-Lopez,

and after considering the parties’ arguments we conclude that the case must be resolved under the law as

we stated it in 2004.

True enough, we held in Rodriguez I that the doctrine

of harmless error, as applied on collateral review, specifies

how federal courts evaluate the consequences of state

courts’ mistakes; it is not a rule concerning what state

courts must do and therefore may change without being

thought impermissibly retroactive. See 382 F.3d at 674.

The Supreme Court regularly elaborates on doctrines of

harmless error without thinking that it needs to justify

their application to old cases under the Teague standard.

See, e.g., Brecht v. Abrahamson, 507 U.S. 619 (1993);

O’Neal v. McAninch, 513 U.S. 432 (1995).

What the Court did in Gonzalez-Lopez, however, differs

from a refinement of harmless-error analysis for the

federal judiciary. It held, instead, that a primary meaning

of the sixth amendment is that judges must respect defendants’ choice of lawyer unless a good reason requires

disqualification. The Court made it clear that its decision with respect to both defendants’ legal entitlement

and the structural-error analysis was driven by the

Constitution. Gonzalez-Lopez did not articulate a rule

that applies only in federal court, leaving states to devise

their own approach independently. The Court announced

a constitutional norm, applicable in all courts within

the jurisdiction of the United States. And a new rule

telling states how their own courts must behave rarely

applies to prosecutions that became final before the

rule’s announcement.

A new rule of constitutional law applies retroactively

in collateral proceedings only if it is substantive (that is,

if it places primary conduct outside the reach of the
No. 06-3995 5

criminal sanction) or is a “ ‘watershed rul[e]’ of criminal

procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” Saffle v. Parks, 494

U.S. 484, 495 (1990); Whorton v. Bockting, 127 S. Ct. 1173,

1180 (2007). Gonzalez-Lopez does not fit in either category.

It does not insulate any conduct from criminal punishment. It isn’t a “watershed” equivalent to Gideon v.

Wainwright, 372 U.S. 335 (1963); Rodriguez does not

deny that he enjoyed the assistance of competent counsel.

And it does not protect “the fundamental fairness and

accuracy of the criminal proceeding.” Quite the contrary,

Gonzalez-Lopez rejected the approach we had taken in

Rodriguez I precisely because, in the majority’s view, the

right to be represented by counsel of choice protects an

interest in autonomy rather than the accuracy of the trial.

The holding of Gonzalez-Lopez is that the right’s nature

requires the trial to be rerun even when there was no

prejudice. A rule so stated is not applied retroactively on

collateral attack, a point made earlier this year by

Whorton, which held that Crawford v. Washington, 541

U.S. 36 (2004), is not retroactive.

This conclusion leaves the question we posed in 2004,

reflecting the law as it then was: whether Rodriguez

suffered any adverse effect from the mistaken disqualification. Unfortunately, neither side’s appellate brief devotes

much space to that question; counsel were too dazzled by

Gonzalez-Lopez. The discussion that does appear in the

briefs does not distinguish clearly between the need to

show some kind of effect as an element of the constitutional wrong, and the evaluation of harmless error if

the Constitution has been violated. These need to be

analyzed separately, as Gonzalez-Lopez did. Our original

opinion’s failure to keep these subjects distinct may have

influenced the parties’ briefing choices on appeal.

Rodriguez I treated adverse effect as a modification of

the “prejudice” component in Strickland v. Washington,

466 U.S. 668 (1984), and thus as an element of the consti-
6 No. 06-3995

tutional wrong. This implies that the petitioner bears the

burden of persuasion, as the district court held, but our

opinion did not address that subject and it may need

further consideration. We also invite the parties to address whether the district court needed to hold an evidentiary hearing before reaching a decision about adverse

effect, and whether there is any independent role for

harmless-error analysis if an adverse effect should be

established. Counsel also should ensure that both of the

lawyers representing Rodriguez were retained (as we have

been assuming), given the Supreme Court’s view that “the

right to counsel of choice does not extend to defendants

who require counsel to be appointed for them.” GonzalezLopez, 126 S. Ct. at 2565. See also Wheat v. United States,

486 U.S. 153, 159 (1988). Accordingly, we direct counsel

for the state to file a brief addressing these subjects by

August 2, 2007. Counsel for Rodriguez will have until

August 23, 2007 to respond, and a reply brief may be filed

no later than September 4, 2007.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-5-07