Joel Rhodes v. Michael Dittmann

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-1741

JOEL RHODES,

Petitioner-Appellee,

v.

MICHAEL A. DITTMAN, Warden,

Columbia Correctional Institution,

Respondent-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13-C-0161 — Lynn Adelman, Judge.

____________________

ARGUED OCTOBER 1, 2014 — DECIDED APRIL 14, 2015

____________________

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

Judges.

WOOD, Chief Judge. Accused of kidnapping and aggravat-

ed battery, Joel Rhodes had trouble deciding whether to take

advantage of his constitutional right to counsel. After going

through several lawyers, he convinced the state court that he

wanted to represent himself. But shortly before his trial be-

gan in May 2007, he informed the court that he had changed

2 No. 14-1741

his mind and needed more time for retained counsel to pre-

pare. The court refused to go along; it informed Rhodes that

his request was untimely and that it smacked of gamesman-

ship. A jury convicted Rhodes, the Wisconsin Court of Ap-

peals affirmed, and the state supreme court denied review.

Rhodes then turned to the federal court for habeas corpus

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

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

We find neither of the state courts’ reasons for rejecting

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

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

inconsistent with the deferential standard of review that ap-

plies here. We therefore reverse.

I

A

This litigation stretches all the way back to 2002, when

Rhodes was charged by state prosecutors with two counts of

kidnapping. He retained Peter Kovac as his trial counsel.

Kovac represented Rhodes well: a jury acquitted him on one

count, while a different jury convicted him on the other

count. Rhodes appealed the conviction, primarily on the

ground that Kovac had rendered ineffective assistance, but

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

of error) reversed and remanded based on a problem with

the jury.

On remand, the state added a charge of aggravated bat-

tery to the information. The court appointed a public de-

fender, Richard Kaiser, to represent Rhodes. On March 13,

2007, nearly two months before the trial was scheduled to

begin, Kaiser moved to end his representation of Rhodes,

No. 14-1741 3

because Rhodes wanted to represent himself. The trial court

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

warned Rhodes about the dangers of self-representation. It

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

the judge wanted Rhodes and Kaiser to have more time to

attempt to resolve their differences.

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

had an extensive exchange with Rhodes about his decision to

proceed pro se. After the judge provided Rhodes and his at-

torney with a waiver form, Rhodes spoke again. He told the

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

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

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

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

judge to question Kovac directly. Kovac said that Rhodes

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

view Rhodes was not engaging in gamesmanship or build-

ing a record for an appealable issue. Nonetheless, he added,

Rhodes had not yet retained him. After receiving the com-

pleted waiver form from Rhodes, the judge again questioned

Rhodes about his decision to represent himself, and Rhodes

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

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

granted Rhodes’s request to proceed pro se.

We would not be here if that had been the end of the mat-

ter. Between the hearing we have just described and the start

of the trial, Rhodes and Kovac sent a stream of correspond-

ence to the court. On April 18, Rhodes wrote the judge a

short letter informing him that he authorized Kovac “to

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

connection with the case that I have pending in your court.”

4 No. 14-1741

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

character, including his interests in religion and philosophy,

and opining that proceeding pro se would be “difficult and

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

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

for him to prepare properly in the time remaining before

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

reschedule the trial in order to allow him to prepare, to “pro-

tect [Rhodes’s] Sixth Amendment right to counsel,” and per-

haps to prompt a plea agreement. On May 1, Rhodes chimed

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

his preparation. He mentioned that he had asked Kovac to

“come in and assist” and complained about the judge’s re-

fusal to postpone the trial. Two days later Rhodes wrote the

judge again to complain that the state was making his trial

preparation difficult. Rhodes told the judge that he “now

better appreciate[s] the difficulties of representing myself”

and wanted Kovac to represent him. Finally, on May 6, Ko-

vac again wrote to the judge, reiterating that Rhodes had

asked Kovac to represent him but that Kovac did not have

enough time to prepare for the May 7 trial.

The judge took note of this correspondence at the outset

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

previously had accused Kovac of ineffective assistance of

counsel in a post-conviction motion. The judge found “bi-

zarre” the fact that Rhodes was now asking the court to al-

low Kovac again to represent him. He reminded Rhodes that

Rhodes had waived his right to counsel after a long ex-

change with the court. After Rhodes asked whether the

judge would grant an adjournment so that Rhodes could

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

the adjournment because of, specifically, your motion to al-

No. 14-1741 5

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

You apparently had been thinking about this for some time

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

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

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

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

record that established you could represent yourself, because

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

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

someone to represent you on the day of trial.” The judge lat-

er added that he thought “that there are games going on

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

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

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

opinion.”

At various other points during the trial, the judge refused

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

Kovac’s representations to the court that he was not pre-

pared for the trial. The judge also rejected Rhodes’s request

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

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

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

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

Rhodes later made another motion for standby counsel,

which the court denied. On the fourth day of trial Kovac ac-

tually sat at the counsel table next to Rhodes and asked for

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

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

with the court, said that he “believe[d] that this record is be-

ing manipulated.” Once again, he declined to alter his rul-

ing. The jury convicted Rhodes on both the kidnapping and

aggravated battery charges.

6 No. 14-1741

B

After the trial court denied his postconviction motion for

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

appealed his conviction to the Wisconsin Court of Appeals.

His primary point was that the trial court had erred in refus-

ing to allow Kovac to represent him. The court of appeals

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

April 2007 colloquy with Rhodes discussing his waiver of

counsel as “exemplary”: the judge properly warned Rhodes

of the dangers of self-representation and promptly ques-

tioned Kovac at the hearing once Rhodes mentioned that he

had been trying to hire Kovac. This was enough, in the ap-

pellate court’s opinion, to support a finding of a deliberate

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

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

U.S. 806 (1975).

As for the trial judge’s refusal to allow Rhodes to rein-

state Kovac as his attorney, the court of appeals concluded

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

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

held that it was “[p]lainly” proper for the trial judge to be-

lieve that “an adjournment to permit the involvement of an

attorney who concededly was not yet prepared to try the

case would have had a significant impact on court admin-

istration, calendar management, and witness availability.” It

also found no abuse of discretion in the trial judge’s assess-

ment of Rhodes’s tactics. It pointed out that Rhodes had

made three “mutually exclusive” requests regarding his rep-

resentation. The trial judge’s conclusion that “Rhodes was

attempting to affect the proceedings adversely by inserting a

lawyer into the case who was concededly unprepared and

No. 14-1741 7

who Rhodes previously challenged as constitutionally inef-

fective” was a permissible one. The court of appeals thus

found that each of the trial judge’s reasons independently

supported the refusal to permit Rhodes to revoke his waiver

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

court added that Rhodes did not suffer a deprivation of his

right to counsel when jail officials prevented him from visit-

ing with Kovac the weekend before trial.

C

Rhodes filed his petition for a writ of habeas corpus un-

der 28 U.S.C. § 2254 in the Eastern District of Wisconsin in

February 2013. He made three arguments in support of his

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

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

recognize that his Sixth Amendment right to counsel was

denied when the trial court refused to allow him to revoke

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

right to counsel was not violated when the jail officials re-

fused to let Rhodes meet with Kovac.

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

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

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

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

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

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

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

trial. By that time, the district court acknowledged, “wit-

nesses had already been assembled and the trial could not

have been rescheduled without interfering with orderly

court administration.” Thus “the trial judge would have

been within his discretion to deny Rhodes’s request solely

8 No. 14-1741

because of its untimeliness and the resulting prejudice to

court administration.”

Instead of ending its inquiry there, however, the district

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

concern that Rhodes was engaged in gamesmanship and an

attempt to manipulate the record. The district court found

this characterization to be unreasonable, despite the Wiscon-

sin Court of Appeals’s contrary view. It took issue with the

idea that Rhodes’s various requests concerning Kovac and

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

fact, the district court said, these were “alternative and con-

sistent requests,” and the state court’s conclusion to the con-

trary was unreasonable. It then undertook a de novo review

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

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

reasonable conclusion,” the district court concluded, was

that “Rhodes earnestly wanted Kovac to represent him be-

cause he thought Kovac would do a better job than he could

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

of gamesmanship and manipulation was clear error, there-

fore, and the reliance on it deprived Rhodes of his Sixth

Amendment right to counsel.

This left the obvious question why, despite any error on

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

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

district court explained that it understood its task to be to

“review[ ] a judge’s reasoning process, not merely the out-

come produced by that reasoning process.” This meant, the

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

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

not enough when the judge’s reasoning process is “tainted”

No. 14-1741 9

by a clearly erroneous factual finding. Because it had found

that the state trial court erroneously relied on the games-

manship ground, the district court granted Rhodes’s peti-

tion.

II

Warden Dittman has appealed from that decision. He

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

clearly established right to forgo self-representation at the

last minute; second, that the Wisconsin courts did not unrea-

sonably apply nor act contrary to clearly established Su-

preme Court precedent when they denied Rhodes’s request

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

deciding that Rhodes was entitled to issuance of the writ be-

cause the Wisconsin courts unreasonably determined that

Rhodes engaged in gamesmanship in making his request.

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

discuss Dittman’s other arguments.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 28 U.S.C. § 2254, Rhodes is entitled to ha-

beas corpus relief if the challenged state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law” or else “was based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). Although we review the district court’s judgment

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

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

court decision is “highly deferential” and “demands that

state-court decisions be given the benefit of the doubt.” Cul-

len v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quotations omit-

ted). “We must deny the writ if we can posit arguments or

10 No. 14-1741

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

and if fairminded jurists could disagree about whether those

arguments or theories are inconsistent with Supreme Court

holdings.” Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013) (cit-

ing Pinholster, 131 S. Ct. at 1402). Furthermore, the presump-

tion that a state court’s factual determinations are correct can

be rebutted only with clear and convincing evidence.

28 U.S.C. § 2254(e)(1). Such determinations are “not unrea-

sonable merely because the federal habeas court would have

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

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

The district court recognized that at least one valid ar-

gument supported the determination of the Wisconsin Court

of Appeals that the trial court properly denied Rhodes’s re-

quest to reinstate Kovac: the request was untimely. It was

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

legally incompetent on the threshold of trial, the court must

step back and assess the situation as a whole, including po-

tentially “serious inconvenience to judge, jury, opposing

counsel, witnesses, and other litigants.” United States v. Tol-

liver, 937 F.2d 1183, 1187 (7th Cir. 1991) (quotations omitted).

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

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

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

v. Solina, 733 F.2d 1208, 1211–12 (7th Cir. 1984) (a pro se de-

fendant who “at the last minute … gets cold feet and wants a

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

hold him to his original decision in order to avoid the dis-

ruption of the court’s schedule that a continuance granted on

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

cause”). See generally Morris v. Slappy, 461 U.S. 1, 11 (1983).

No. 14-1741 11

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

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

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

before that did Rhodes write to request that Kovac represent

him. The trial judge was unable to deal with this request un-

til day one of trial, when it denied Rhodes’s request. At that

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

dozen witnesses—some of them inmates—were waiting to

testify. The district court recognized the eleventh-hour na-

ture of the request and agreed with the Wisconsin Court of

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

judge to deny Rhodes’s request for that reason.

Where the court erred was in failing to recognize that this

independent reason disposes of the habeas corpus petition.

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

court, not on parts of a written opinion that might in isola-

tion appear to be misguided but that in the end are not nec-

essary to the outcome. See 28 U.S.C. § 2254(d)(2) (writ may

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

decision that was based on an unreasonable determination of

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

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

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

795 F.2d 1296, 1297 (7th Cir. 1986); see also Jennings v. Ste-

phens, 135 S. Ct. 793, 799 (2015). Neither the state courts nor

the district court offered any reason to think that the timeli-

ness decision was affected by the concern about gamesman-

ship or manipulation.

Because the state court explicitly provided a theory that

supported its decision (the untimeliness rationale), we must

deny the writ. Kidd, 734 F.3d at 703. As the Supreme Court

12 No. 14-1741

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

state law determination that is sufficient to support the

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

The Wisconsin Court of Appeals relied on a precedent from

that state’s supreme court advising trial judges to consider

the timeliness of a request to substitute counsel and to be

watchful for delay tactics arising from such requests at the

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

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

independent and adequate ground for the state court’s deci-

sion. See Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir.

2010).

Moreover, AEDPA forecloses the type of searching analy-

sis of a non-critical part of a state-court opinion that the dis-

trict court undertook here. The district court was required by

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

determinations were correct. Those findings may be set aside

only on the basis of clear and convincing evidence to the

contrary. Even assuming that the district court was correct

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

erroneous, the state court’s contrary conclusion was not nec-

essary to its decision. We add that we are hard-pressed to see

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

bounds that it qualified as “unreasonable” under AEDPA.

Viewed deferentially, the record contains some support for

the state court’s finding that Rhodes had a history of equivo-

cal behavior regarding his representation and that his timing

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

file an appearance on behalf of Rhodes before trial began.

Instead, both Rhodes and Kovac were content to write letters

before trial, and then pepper the judge with requests and

motions after the trial began.

No. 14-1741 13

Before concluding, we must underscore the importance

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

comment on how we might have assessed either the timeli-

ness of Rhodes’s efforts to retain Kovac, starting from the

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

because our independent view is neither here nor there. As

we have observed in the past, AEDPA requires more than

simple error before a lower federal court can upset a state-

court decision. See, e.g., Hardaway v. Young, 302 F.3d 757, 759

(7th Cir. 2002) (reversing grant of writ despite court’s “grav-

est misgivings and only in light of the stringent standard of

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

year-old’s confession to murder).

III

Because the Wisconsin appellate court’s determination

that Rhodes waited too long to renew his request for counsel

was a reasonable and sufficient ground for its decision, and

there was no need on these facts to inquire further, the dis-

trict court should not have issued the writ of habeas corpus.

We therefore REVERSE its judgment.