### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1168
A NDREW L. J ACKSON , Petitioner-Appellant ,

v.

B YRAN B ARTOW , Respondent-Appellee

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-CV-17 — Nancy Joseph , Magistrate Judge

.

____________________
S UBMITTED J ULY 9, 2019

— D ECIDED J ULY 23, 2019

____________________

Before K ANNE , H AMILTON , and S CUDDER , Circuit Judges

. P ER C URIAM

. A Wisconsin trial court denied Andrew L. Jackson’s request to represent himself at trial, and Jackson later pleaded guilty. He seeks a writ of habeas corpus under28 U.S.C. § 2554, arguing that Wisconsin unreasonably applied Supreme Court precedent involving the Sixth Amendment right for competent defendants to represent themselves at trial. The distri ct court agreed with Jackson that the Wisconsin trial court erred in ruling that he could2 No. 19-1168

not represent himself at trial, but it nonetheless denied his petition. It correctly concluded that under Gomez v. Berge ,434 F.3d 940 (7th Cir. 2006), Jackson waived his right to challenge that earlier ruling when he later entered an unconditional, knowing, and voluntary guilty plea. Therefore, we affirm.
I. B ACKGROUND Jackson faced serious charges in Wisconsin state court,and the court appointed a lawyer for him. Prosecutors accused him of throwing boiling o il at his wife, knifing her infront of their children, and later, threatening her from prison. At a hearing in January 2012, Jackson asked the judge toremove his counsel. He complained that counsel had withheld discovery and met with hi m too late in the proceedings to adequately discuss strate gy. The court granted the motion. At the same time, the court barred Jackson from communicating with anyone but hi s attorney of record because of his threatening phone calls to his wife. After the court appointed another lawyer, that lawyer reported that Jackson also as ked him to withdraw. Jacksoncomplained that he had not yet received some discovery materials and that counsel had no faith in him. The court ruled that these reasons were inadequa te and refused to appoint a third lawyer. The judge allowe d Jackson to seek a privateattorney so long as he adhered to the restrictions on his outside communications. Jackson told the trial judge that he wanted to represent himself, but the judge denied that request. He said that hewould consider Jackson’s request only if Jackson was “capable of and ready and prepared” to represent himself, but itNo. 19-1168 3

was “not a given [he] could do it.” Months later, the court returned to Jackson’s request. It stressed the complexity of the case, explaining that it would not trust someone with under five years of defense experience to represent Jacksonand warning that Jackson “can’t do this.” Jackson still insisted that he could. The court ultimately denied Jackson’s request. It reasoned that Jack son was “clearly incompetent ...to present a case of this complexity” and lacked “the ability[...], the training, the knowledge, and the time to properly prepare it.” Jackson pleaded guilty a few days later to two counts of felony intimidation of a witness, one count of first-degreereckless injury, and one count of aggravated battery. He received a prison sentence of 20 years. Jackson filed a postconviction petition in Wiscons in, seeking to withdraw his guilty plea on the ground that he was denied his right to self-representation at trial. The post-conviction court denied his motion. Jackson appealed, but the Wisconsin Court of Appeals affirmed, reasoning that Jackson “did not sufficiently understand the complexity of his trial or the law concerning the charges against him.” He petitioned the Wisconsin Supreme Court, but it denied review.Jackson’s next step was a federal petition for a writ of habeas corpus. In it, he argues that Wisconsin unreasonably applied Supreme Court precedent by affirming the denial of his request to represent himself at trial. (He does not claim that he had a right to self-repre sentation at his guilty plea, or that, because unwanted counsel represented him at his guilty plea, his plea was not knowing and voluntary.) He stresses that, because he was competent to plead guilty, he was competent to represent himself at trial.4 No. 19-1168

Presiding by consent, a magistrate judge denied the petition. She explained that, even though the Wisconsin appeals court had unreasonably applied Supreme Court precedent on the Sixth Amendment right to self-representation at trial, Jackson waived the error by va lidly pleading guilty. Under Gomez v. Berge , 434 F.3d 940 (7th Cir. 2006), his valid guilty plea waived any defects in the proceedings before the plea, including any Sixth Amendment violation.
II. A NALYSISThe Antiterrorism and Effective Death Penalty Act governs our review of Jackson’s petition. As relevant here, the Act allows habeas relief only if the decision of the Wisconsin Court of Appeals, the last state court to address Jackson’s claim, was “contrary to, or in volved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Echoing the district court, Jackson argues that, by refusing to let him represent himself at trial, the Wisconsin Court of Appeals unreasonably applied Faretta v. California , 422 U.S. 806 (1975). In Faretta, the Supreme Court held that under the Sixth Amendment , defendants have the right to represent themselves at tria l so long as th ey competently choose to do so. 422 U.S. at 807. Jackson is correct: the Wiscons in Court of Appeals unreasonably applied Faretta when it affirmed the trial court. The appellate court based its decision solely on Jackson’s knowledge deficits (he did not know “the law” or the trial’s “complexity”), not mental health problems (which he did not have). By relying on Jackso n’s lack of skill, the appellate court’s decision was contrary to and an unreasonable application of Faretta

. As we recently explained in Tatum v. Foster ,No. 19-1168 5

Faretta protects the right of a criminal defendant to make this (usually) self-defeating choice [of self-representation]. By failing to recognize that the Supreme Court's Faretta line of casesfocus only on competence as it relates to mental functioning, and forbids the consideration of competence in the sense of accomplishment, the Wisconsin courts reached a result that iscontrary to, as well as an unreasonable application of, the Supreme Court's rulings. 847 F.3d 459, 469 (7th Cir. 2017). This error, however, does not entitle Jackson to relief if he validly waived his right to contest it. See Ward v. Hinsley, 377 F.3d 719, 725–26 (7th Cir. 2004). The magistrate judge ruled, and the state maintains on appeal, that Jackson’s guilty plea waives his claim of any error. Jackson offers two responses, but neither is persuasive. Jackson’s first response is that the State may not assertwaiver because it did not raise waiver as an affirmative defense in its answer to Jackson’s federal petition. See F ED

. R. C IV

. P. 8(c). But the district court and this court may raise Jackson’s waiver sua sponte
, as Jackson admits. See, e.g. , Gomez , 434 F.3d at 942; Gomez v. Berge , 2004 WL 1852978, at *2 (W.D. Wis. Aug. 18, 2004). An d the district court gave Jackson an opportunity to address the defense, so he has notbeen prejudiced by its omission from the answer. The defense is thus properly before this court.Jackson’s second argument is equally unavailing. He contends that the district court improperly relied on Gomez to rule that he waived any error. Gomez held that “an uncondi-6 No. 19-1168

tional plea of guilty operates as a waiver of all formal defects in the proceedings, including any constitutional violations that occurred before the plea was entered.” 434 F.3d at 942. Gomez made a no-contest plea, and we ruled that this pleaprecluded him from “contesting the trial court's determination that he was not competent to represent himself at trial.” Id . at 943. We have reiterated Gomez several times in recent years. See, e.g., United States v. Lockett , 859 F.3d 425, 427 (7th Cir. 2017); United States v. Stoller , 827 F.3d 591, 594 (7th Cir. 2016); Hurlow v. United States , 726 F.3d 958, 966 (7th Cir. 2013). Jackson’s case is identical to Gomez . Both Gomez and Jackson were indicted in Wisco nsin state court; both weredenied the right to self-representation at trial; both later entered pleas in lieu of going to trial (Gomez pleaded no contest, and Jackson pleaded guilty); and both petitioned for a federal writ of habeas corpus ba sed on the denial of the right to self-representation. But because their pleas waived any claim about pre-plea errors, neither received federal relief. Under Gomez, Jackson must lose. To avoid this result, Jackson argues that United States v. Smith , 618 F.3d 657 (7th Cir. 2010), supersedes Gomez

. Smith was a direct appeal. It vacated a guilty plea that a defendantentered after the district court refused to allow him to replace one attorney with another. According to Jackson, Smith applied a new rule: an unconsti tutional denial of a defendant’s choice of counsel is a “s tructural error” that “brings into question the voluntary an d intelligent character of theguilty plea itself.” 618 F.3d at 663 (quotations omitted). Jackson contends that, under Smith, his denial of self-representation is also a st ructural error that similarlyNo. 19-1168 7

overcomes the defense that he wa ived it by pleading guilty. Jackson’s argument fails, and Gomez controls, for three reasons. First, Jackson incorrectly asserts that Smith espoused a new rule about structural erro rs in the context of selfrepresentation. It is true that in Smith this court observed that in United States v. Gonzalez-Lopez , 548 U.S. 140 (2006), theSupreme Court held for the first time that the denial of a defendant’s choice of counsel is structural and not subject to harmless-error review. Smith , 618 F.3d at 663 (citing Gonzalez-Lopez , 548 U.S. at 148). But Gonzalez-Lopez also noted that the wrongful denial of the right to self-representation at trial has been considered a structural defect since at least 1984. 548 U.S. at 149. (“[Structural] errors include ... the denial of the right of self-representation ... .”) (citing McKaskle v. Wiggins , 465 U.S. 168, 177–78, n.8 (1984)). So, when this court decided Gomez in 2006 , it knew that the erroneous denial ofself-representation at trial was a structural defect—yet it enforced the guilty-plea-waiver rule anyway. Thus, Smith didnot create a new rule about self-representation that supersedes Gomez

. Second, the consequence of a “s tructural” error is that it is not subject to harmless-error review, see Gonzalez-Lopez , 548 U.S. at 148; but such errors can still be waived. Doctrinesof default and waiver are grounded in federalism and comity, so they apply on federal habeas review even if the “claimraised before the federal habeas court is one of structural error.” Ward, 377 F.3d at 725–26; United States v. Gaya , 647 F.3d 634, 640 (7th Cir. 2011) (explaining that “there is no reason to exempt ‘structural errors’” from waiver). Nothing in Gonzalez-Lopez or Smith suggests that a defendant like Jackson8 No. 19-1168

cannot knowingly and voluntarily waive his claim of a prior structural error by validly pleading guilty. Third, Smith is consistent with Gomez. Smith vacated the defendant’s guilty plea because we decided that the denial of his counsel of choice at trial called into question his plea’s voluntariness. See 618 F.3d at 663, 667. Here, Jackson does not claim in his petition in the district court (nor does he argue in this court) that, because the trial court would not let him represent himself at trial, his counseled guilty plea wasunknowing or involuntary. To the contrary, Jackson’s petition appears to imply that his guilty plea was valid—he argues that he was competent to represent himself at trial precisely because he was “competent” to plead guilty. By notraising that claim in the district court, Jackson did not develop an argument or record on the voluntariness of his plea, and the district court had no chance to assess the argument or the State’s responses to it. Therefore, Jackson has forfeited that claim for review in this court. Frazier v. Varga , 843 F.3d 258, 262 (7th Cir. 2016). (“Regardless of whether a habeas claim was fairly presented or defaulted in the state courts, if an argument was not presented to the federal district court, it is forfeited in this court.”) Without a preserved claim that his guilty plea was unkn owing or involuntary, Smith is inapposite and Gomez demonstrates that Jackson’s plea waived any prior errors in the state trial court.

AFFIRMED