Carlson, Matthew S. v. Jess, Cathy

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3428

M ATTHEW S. C ARLSON,

v. Petitioner-Appellee,

C ATHY JESS,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 C 481—Lynn Adelman, Judge.

____________

A RGUED M ARCH 31, 2008—D ECIDED M AY 19, 2008

____________

Before K ANNE, E VANS, and SYKES, Circuit Judges.

E VANS, Circuit Judge. After a one-day jury trial, Mat-

thew Carlson was convicted of first-degree sexual

assault of a child and sentenced to 55 years in a Wis-

consin state prison. He now seeks a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, arguing that the state trial

court’s denial of his motion to substitute counsel and for

a continuance violated his Sixth Amendment right to

counsel of choice and his Fourteenth Amendment right

to due process. He also maintains that the state court of

appeals’ decision affirming the trial court’s judgment

was unreasonable. The district court (Judge Lynn Adel-

2 No. 07-3428

man) agreed with Carlson and granted his petition in a

comprehensive opinion. Carlson v. Jess, 507 F. Supp. 2d

968 (E.D. Wis. 2007). The State now appeals.

Back in 1996, Carlson was convicted of one count

of sexual assault of a boy under the age of 13. At that time,

the complainant here, we’ll call him “Gino,” was 9 years

old and a friend of Carlson’s stepson. Upon hearing of the

conviction, Gino’s grandparents asked him whether

Carlson had ever assaulted him. Gino denied any im-

proper behavior on the part of Carlson.

Six years later, in 2002 when Gino was 15 years old, he

alleged that Carlson sexually assaulted him in 1996

and 1998. Gino initially complained to the staff of Raw-

hide Boys Ranch,1 where he then resided. Soon thereafter,

the Ozaukee County 2 district attorney charged Carlson

with several counts of sexually assaulting Gino. Carlson

hired attorney Randall Kaiser to represent him. At

Carlson’s May 20, 2002, arraignment, the trial court set

a trial date of August 27, 2002. The parties agreed that

1

On its Web site, www.rawhide.org, Rawhide describes itself

as “a faith-based, non-profit residential care center dedicated

to changing the lives of troubled teen boys.” Its mission is to

“inspire and equip at-risk, teenage boys to become responsible

young men through family-centered care, treatment, and

education.”

2

Ozaukee County is located just north of Milwaukee County

on the western shores of Lake Michigan. Ozaukee County is

rather small, only some 86,000 residents, compared to Mil-

waukee County which checks in, according to a 2006 estimate,

at 915,000. Also, according to U.S. Census Bureau statistics,

Ozaukee County is fairly wealthy: its median household in-

come is $69,174 as compared to Milwaukee County’s $39,481.

No. 07-3428 3

the trial would take, at most, two days to complete.

Carlson remained in jail from the time of his arrest until

his eventual trial.

In the weeks leading up to the trial, Carlson requested

two brief continuances, one for additional preparation

time and one to permit Kaiser’s co-counsel to assist him

at trial. The trial judge denied both requests, citing his

calendar and the fact that the complainant was a juve-

nile. In the meantime, Carlson lost confidence in

Kaiser’s ability to represent him. On August 17, ten days

before the scheduled start of the trial, Carlson notified

Kaiser that he had hired another attorney, Robin Shellow,

to replace him. Two days later, Kaiser moved to with-

draw as counsel. On August 23, Carlson, with Shellow’s

help, moved to substitute Shellow for Kaiser as his

counsel, conditioned upon an adjournment so that Shellow

could prepare for trial. In support of the motion,

Ms. Shellow submitted a detailed explanation of the

additional investigation she wanted to conduct before trial.

The trial judge, however, did not sit during the week of

August 19 and thus did not promptly address Kaiser’s

motion to withdraw or Carlson’s motion for substitu-

tion and a continuance. On August 26, the day before

the trial was scheduled to begin, the judge returned to

the bench and held a hearing on the motions. There,

Kaiser stated:

I am in a very tough position I think if I am not allowed

to withdraw. As I said, our communication has com-

pletely broken down. We have differences of opin-

ions, and I know they don’t feel confident, he and his

family. I think it’s better for everyone if I withdraw.

I don’t feel that the state is prejudiced by allowing

me to withdraw. It’s my understanding that they

4 No. 07-3428

really only have one citizen witness. This is a case

that allegedly occurred approximately six years ago

and was not charged until April of this year. So I don’t

think Attorney Shellow or I—I don’t want to speak

for her, but I don’t think we are requesting a long

adjournment. This is the first request that Mr.

Carlson has made for a new attorney.

Kaiser also explained that Carlson was not seeking to

delay the proceedings unnecessarily and reminded the

court that Carlson was and would remain in custody

during a continuance. The prosecutor opposed Kaiser’s

request because Shellow “ha[d] already indicated in

papers that she wouldn’t be able to proceed tomorrow”

and because the complainant was a child.

The trial judge conceded that “the defendant has a

right to counsel,” but stated:

I think here there are paramount issues. And the first

issue is the orderly administration of this Court.

I said last week or on the 14th that it would be

months before this case got back on the trial calendar.

And these late motions to withdraw, I am not in-

clined to grant it—in fact, I am not going to grant the

motion to withdraw. This case is going to trial tomor-

row. I don’t see any reason why it can’t go. This

Court is prepared to try it.

I also am concerned that you have a young victim

in this. Not as young as some the Court sees, but

young. And I don’t see anything in the motion papers

that were filed by Attorney Shellow that is of a magni-

tude that causes the Court to hesitate and say this

Court can’t go to trial tomorrow. I am ordering it to

go ahead.

No. 07-3428 5

Shellow then asked to be heard and stated that the

case involved factual issues that Kaiser had not ex-

plored and constitutional issues that he had not

researched. She explained that she wished to explore

Gino’s motives for making the allegation and to engage an

expert regarding a number of questions, including ques-

tions raised by Gino’s reporting of the assaults to Rawhide

staff years after they allegedly occurred. Shellow stated

that she also wished to examine possible improper police

coaching and a Miranda issue. She also noted that Kaiser’s

failure to explore any of these matters raised issues of

ineffective assistance of counsel.

The judge’s only response was to ask Shellow if she

was prepared to try the case tomorrow. When Shellow

replied that she was not, the court stated:

Then I am not granting the motion. This case is

staying on the calendar. I understand the problems,

but I find that a case that’s been set 90 days out, and

then to come in the day before and say I want

to withdraw and I want it taken off the Court’s calen-

dar, is a serious problem for administration of this

Court. And I realize there are issues. But I think Mr.

Carlson can get a fair trial. His attorneys have been

working on this. They have been in court numerous

times. And I think there are other issues that have to

be factored into the analysis, and I have done that,

and I am denying the request.

The next day, before the trial commenced, Carlson

himself asked to address the court. He stated:

I have tried on numerous occasions to convey my

concerns with Mr. Kaiser, to no avail. I have been

met with argumentative comments, I have been met

6 No. 07-3428

with the impression to take a plea bargain which I’ve

signed several papers stating I would not, and that

seems to be our whole matters. . . .

....

. . . I have not received one piece of paper con-

cerning this case since I have been incarcerated. I

have not one sheet of paper about this case to look

back on when I am in jail. Also, one of [Kaiser’s]

associates, who I will not name, when I met the

first time I could swear under oath I have smelled

liquor on his breath. I am not—I am not gonna men-

tion any names, I didn’t want to risk a lawsuit. And

also I have talked to Mr. Kaiser several times about

different witnesses that obviously he doesn’t feel

I need, and I have mentioned to him and so have my

parents and my wife about possibly different people

we could bring, prior to May 23rd or whatever that

was, and I still have not heard nothing about that

either.

The judge acknowledged that “there are situations where

release of counsel is warranted, when there’s an ethical

dilemma, when there is a situation where the rela-

tionship has broken down to the point where there’s no

communication,” but he said Carlson and Kaiser’s rela-

tionship was only suffering because of “differing views of

how the case is approached,” and “strategic decision[s].”

The judge continued:

Against [Carlson’s request to substitute counsel and

for a continuance] the Court has the responsibility,

some countervailing responsibilities. One is to admin-

istration of this Court. . . . I have the victim rights

obligations that I have to consider, I have to consider

No. 07-3428 7

a fair trial for you, and I have to consider the adminis-

tration of this Court’s calendar. . . . I don’t have

another date that could fit a trial like this in until

probably after the beginning of the year. . . . I also

have a young victim, not the youngest as I acknowl-

edged yesterday, who has to have this hanging out

over their head. And on balance I denied the request.

And I am comfortable with the request, I’m comfort-

able that Mr. Kaiser can represent you in a competent

manner. 90 days ago this trial date was set, and the

desire to have a different lawyer or these other issues

should have been brought up much earlier in the

proceedings.

Kaiser then addressed the judge one last time, imploring

him to allow the substitution:

[W]e’ve had a breakdown in communication, and

that is one of the factors I think to allow withdrawal

of an attorney. I understand it’s sort of the last

minute, but he hired new counsel and I’m still of the

opinion that because of the total breakdown in com-

munication that we’ve had, that—and there is no

taxpayer expense, this is only a one-day trial, I

don’t, considering the long time it took the alleged

victim to report this case, I don’t think a short ad-

journment would prejudice anyone but the Court. So

I’m renewing my objection and just stating that

we’ve had a breakdown in communication.

The court denied the motion and trial proceeded as

scheduled. Gino testified that Carlson sexually assaulted

him on several occasions in 1996 and 1998 when he spent

the night with Carlson’s stepson and once when he rode

in a car with Carlson. A detective testified about Gino’s

initial statement accusing Carlson of sexual assault. Gino’s

8 No. 07-3428

mother testified that Gino spent the night with Carlson’s

stepson on several occasions and rode in a car with him

at least once. She also testified that her son had never

indicated any animosity toward Carlson or concerns

about visiting his stepson prior to reporting the sexual

assaults in 2002. Carlson testified, denying Gino’s charges.

Carlson’s wife testified that they lived in a small apart-

ment and that she was home during all of her son’s

sleepovers and thus would have seen or heard any inter-

action between Carlson and Gino. The jury convicted

Carlson of five counts of first-degree sexual assault of a

child and, as we said, he was sentenced to 55 years

in prison.

Carlson appealed to the state court of appeals, arguing

among other things that the trial judge’s refusal to grant

his motion for substitution of counsel and a continu-

ance deprived him of his right to counsel of choice and

his right to due process of law. The court of appeals, in a

per curiam decision that noted “This opinion will not be

published,” affirmed, and the state supreme court sub-

sequently declined to review the case.

Having exhausted his state court remedies, Carlson

petitioned the federal district court for habeas relief,

arguing that the state court’s decision was an unrea-

sonable determination of the facts and contrary to, or an

unreasonable application of, clearly established federal

law. The district court first determined that the record

contained no evidence supporting the state trial judge’s

finding that communication between Carlson and Kaiser

had not totally broken down. Accordingly, the district

court found that because the finding was unreasonable,

the state court of appeals’ decision to accept and rely on

it was also unreasonable. With this determination, the

No. 07-3428 9

district court then examined the merits of Carlson’s

constitutional claim and concluded that the trial court’s

denial of Carlson’s motion for substitution of counsel

and a continuance was arbitrary and had an adverse

effect on the presentation of his case. The district court

then granted Carlson’s petition for relief.3

We review the district court’s findings of fact for clear

error and its legal conclusions, as well as mixed questions

of law and fact, de novo. Harding v. Walls, 300 F.3d 824, 827

(7th Cir. 2002). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), a federal court

may issue a writ of habeas corpus only if the decision of

the last state court to examine the merits of the peti-

tioner’s claim (here, the court of appeals) (1) was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States,” or (2) “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(1)-(2).

The first issue is whether the district court correctly

determined that the state court of appeals affirmed the

trial court’s denial of Carlson’s motion for substitution

and a continuance based on an unreasonable factual

determination—namely, that communication between

Carlson and Kaiser had not completely broken down. A

state court’s factual findings are presumptively cor-

rect absent rebuttal by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). Nevertheless, “[a] federal court can

3

The district court did not address Carlson’s argument that

the court of appeals’ decision was contrary to, or an unrea-

sonable application of, clearly established federal law.

10 No. 07-3428

disagree with a state court’s credibility determination

and, when guided by AEDPA, conclude the decision

was unreasonable or that the factual premise was incor-

rect[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

The record reveals absolutely no support for the state

trial court’s determination that Carlson’s motion for

substitution was based on “differing views of how the

case is approached” and “strategic decision[s].” Rather,

the record is littered with statements by Kaiser and

Carlson himself that communications had completely

broken down. On August 26, Kaiser stated that communi-

cation “has completely broken down.” On August 27,

he repeated this statement twice, telling the court that

“we’ve had a breakdown of communication” and that

there had been a “total breakdown in communication.”

That same day, Carlson himself told that court that he

had “tried on numerous occasions to convey [his] con-

cerns with Mr. Kaiser, to no avail” and that he “still

ha[d] not heard nothing” about his requests that Kaiser

interview certain witnesses. Based on these statements,

the trial judge should have at least probed the matter

further by asking Carlson and Kaiser some follow-up

questions. Instead, however, the judge simply made a

factual finding that “the relationship has [not] broken

down to the point where there’s no communication.” The

trial court’s statement that Kaiser had “discussed wit-

nesses” with Carlson is belied by Carlson’s statement

that he had not yet heard anything from Kaiser on that

issue. With nothing in the record to back it up, the trial

judge’s finding was clearly unreasonable.

The court of appeals also neglected to consider the

evidence supporting Carlson’s motion. In its decision, it

merely paraphrased the trial judge’s findings and stated

No. 07-3428 11

that it was “not convinced that the trial court erred when

it concluded that the asserted conflict between counsel

and Carlson was not so great that it resulted in a total

lack of communication.” Thus, the district court properly

found that both the trial court’s finding and the court of

appeals’ acceptance and reliance on that finding was

unreasonable. See 28 U.S.C. § 2254(d)(2); see also Taylor v.

Maddox, 366 F.3d 992, 1008 (9th Cir. 2004) (“In passing

section 2254(d)(2), Congress has reminded us that we

may no more uphold [an unreasonable] factual deter-

mination than we may set aside reasonable state-court

fact-finding.”).

The second issue is whether the district court correctly

determined that the trial court’s denial of his motion

for substitution and a continuance violated Carlson’s

constitutional rights. Because the trial court based its

decision on an unreasonable factual determination, the

substantive merits of Carlson’s claim are analyzed under

the pre-AEDPA standard—that is, de novo—because there

is no state court analysis to apply AEDPA standards to.

Conner v. McBride, 375 F.3d 643, 655 n.5 (7th Cir. 2004). The

pre-AEDPA standard directs us to “dispose of the

matter as law and justice require.” 28 U.S.C. § 2243.

Carlson maintains that the trial court’s decision vio-

lated his Sixth Amendment right to counsel of choice

and his Fourteenth Amendment right to due process. The

Sixth Amendment secures the right to the assistance of

counsel. It also includes the right to select, and be repre-

sented by, one’s preferred attorney; thus, trial courts

must recognize a presumption in favor of a defendant’s

counsel of choice. Wheat v. United States, 486 U.S. 153, 164

(1988). Accordingly, the Sixth Amendment bars a court

from denying a defendant the right to retain counsel of

12 No. 07-3428

his choice arbitrarily or unreasonably. Ford v. Israel, 701

F.2d 689, 692 (7th Cir. 1983). The Fourteenth Amendment’s

Due Process Clause also bars a court from denying a

defendant’s motion for a continuance arbitrarily or unrea-

sonably. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Thus,

motions for substitution of retained counsel and for a

continuance can implicate both the Sixth Amendment

right to counsel of choice and the Fourteenth Amendment

right to due process of law. See Morris v. Slappy, 461 U.S. 1,

11 (1983).

The right to counsel of choice, however, is qualified

in several respects. One qualification is that an indigent

defendant generally has no right to have his counsel of

choice appointed. Wheat, 486 U.S. at 159. Thus, when a

trial court refuses to appoint new counsel, the defendant

can only show a denial of a constitutional right if he

can establish that his counsel was ultimately ineffec-

tive—that is, he must show prejudice as required by

Strickland v. Washington, 466 U.S. 668 (1984). United States

v. Harris, 394 F.3d 543, 554 (7th Cir. 2005); United States v.

Zillges, 978 F.2d 369, 372 (7th Cir. 1992). The Supreme

Court recently resolved a circuit split and held that a

defendant claiming a denial of the right to counsel of

choice does not have to show Strickland prejudice. See

United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557,

2562 (2006). At the time Carlson’s conviction became

final, our governing case, Rodriguez v. Chandler, 382 F.3d

670 (7th Cir. 2004), stated a similar rule. However,

Rodriguez did require a defendant claiming a denial of

the right to counsel of choice to establish that the denial

had an “adverse effect” on the presentation of his case. Id.

at 675. Thus, to resolve the merits of Carlson’s constitu-

tional claim, we must answer two questions: (1) was the

No. 07-3428 13

trial court’s denial of his motion for substitution of coun-

sel and a continuance arbitrary and if so, (2) did the

denial have an adverse effect on the presentation of his

case?

First, we examine whether the trial court’s denial of

Carlson’s motion for substitution of counsel and a con-

tinuance was arbitrary. Because trial courts have broad

discretion on matters of continuances, “only an unreason-

ing and arbitrary ‘insistence upon expeditiousness in the

face of a justifiable request for delay’ violates the right to

the assistance of counsel.” Morris, 461 U.S. at 11-12 (quot-

ing Ungar, 376 U.S. at 589). The State argues that the

trial court’s exercise of discretion was not arbitrary be-

cause it listened to the arguments and concluded that

(1) the timing of the request for adjournment, (2) the

young age of the victim, and (3) the satisfactory rela-

tionship between Kaiser and Carlson all necessitated

denying Carlson’s request for an adjournment to sub-

stitute counsel. We have already determined that the

trial court’s conclusion that the relationship between

Kaiser and Carlson was satisfactory was unreasonable.4

The other two arguments fail as well.

The State’s argument that Carlson was not entitled to a

continuance because of the timing of his request is far

from compelling. Courts have denied motions for con-

4

In its brief, the government states that “there is no reason to

think that the [trial] court would not have granted the motion

to substitute, had Shellow been prepared to try the case on

the scheduled date.” Rather than justifying the trial court’s

decision, this statement actually reveals that the court’s primary

consideration was its calendar, not the relationship between

Carlson and his counsel or the age of the complainant.

14 No. 07-3428

tinuances based on administrative concerns in a number

of fact situations. See Carlson, 507 F. Supp. 2d at 982 (col-

lecting cases). Here, however, there were few administra-

tive problems to consider. This was a relatively simple

case, and the parties predicted that the trial would take

a little over a day. The State had only three witnesses,

Gino, his mother, and a police officer, who could have

easily appeared at a later date. Carlson filed his motion

a week before trial; through no fault of his own, the

court did not hear it until the day before the trial was set

to start. Nevertheless, even at that point, the witnesses

and jurors had not yet assembled. The court repeatedly

cited its calendar as a reason for denial, saying that

“it would be months before this case got back on the

trial calendar.” But, trial dates open up all the time—for

instance, when a defendant decides to plead guilty.5

Even the inconvenience of pushing the trial back a

month or so would be easily outweighed by Carlson’s

interest in having his counsel of choice properly

prepared to defend him against such serious charges.

Furthermore, Carlson was obviously not seeking to

delay the trial unnecessarily. As Ms. Shellow pointed out,

Carlson had remained in jail from the time of his arrest;

5

We also note that Ozaukee County, perhaps because it’s

fairly affluent, does not appear to be a hotbed of criminal

activity. According to the Wisconsin courts Web site,

www.wicourts.gov, the judges in Ozaukee conducted a total of

only 22 jury trials in all classes of criminal cases—felony,

misdemeanor, and criminal traffic—in 2007. That’s not a

very heavy diet of cases compared to its neighboring county

to the south (Milwaukee) where 389 such jury trials were

conducted in 2007.

No. 07-3428 15

thus, he had nothing to gain by needlessly delaying

the trial. He had never requested to substitute counsel

previously and had no history of “gaming” the system. The

trial judge repeatedly referred to Carlson’s motion as

“late,” but considering that the charges against him

had been pending such a relatively short time and that

he filed his motion to substitute immediately after he

retained new counsel, the timing of his motion was cer-

tainly understandable. Finally, Carlson was not asking

for a long continuance. Notably, we do not know how

long Ms. Shellow would have needed to prepare because

the trial judge never asked her. Apparently, any delay

would have been unacceptable to the trial judge. That

sort of rigidity can only be characterized as arbitrary. See,

e.g., Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981)

(holding that, in a case involving serious charges, a trial

judge acted arbitrarily in denying a continuance where

there was no evidence of a scheme to delay the trial, no

showing of inconvenience to the witnesses, opposing

counsel, or the court, and the length of the requested

delay was not unreasonable).

The State’s argument that Carlson was not entitled to a

continuance because of the young age of the victim,

although facially legitimate, is unpersuasive on the record

in this case. Undoubtedly, a trial court may reasonably

consider the effect of a continuance on a complainant.

Here, however, the court never actually considered

whether a continuance would affect Gino. Despite the

court’s repeated statements to the contrary, the record

indicates that a short delay would not have been detri-

mental to him. His initial complaint came some four to

six years after the alleged assaults; thus, he would not

appear to be at risk for forgetting relevant information a

16 No. 07-3428

few months later. Moreover, Gino was a teenager, not a

young child, and there was no evidence that a brief

delay would have caused him emotional or psychological

harm.

Against these ultimately unconvincing reasons to deny

Carlson a continuance were several compelling reasons

he proffered in support of his motion for a substitution.

Specifically, Carlson stated that (1) communication be-

tween Kaiser and himself had totally broken down;

(2) Kaiser had inadequately investigated the case; and

(3) he disagreed with Kaiser’s overall approach to de-

fending him. As we previously explained, these reasons

were facially valid; thus, the trial court needed to ex-

plore them and, because Carlson also requested a con-

tinuance, balance them against the reasons for not granting

Carlson’s motion. The trial judge, however, made no

effort to do so.

In casting Carlson’s arguments aside, the judge may

have been attempting to follow precedent on appointed

counsel and the right to effective assistance of counsel,

which sets higher standards for relief than the right to be

represented by retained counsel of choice. For instance, a

total breakdown in communication justifies the appoint-

ment of new counsel for an indigent defendant. Harris,

394 F.3d at 552. However, even if a breakdown in com-

munication is not so severe as to implicate the right to

counsel, it may still provide a reasonable justification for

a substitution of retained counsel and a continuance.

And, while an attorney’s strategic decisions are not defi-

cient performance under the test for ineffective assistance

of counsel, Strickland, 466 U.S. 668, 688-89 (1984), a signifi-

cant dispute about strategy may implicate a defendant’s

right to counsel of choice. Thus, when Carlson presented

No. 07-3428 17

his arguments, the trial judge erred in dismissing them

as irrelevant to his constitutional rights.

In sum, the trial judge ignored the presumption in

favor of Carlson’s counsel of choice and insisted upon

expeditiousness for its own sake. The judge made no

effort to ascertain the facts and follow up on Carlson’s

reasonable justifications for seeking a substitution. The

reasons the judge did cite for denying a continuance

were weak, and he made no attempt to balance them

against the effect of Kaiser’s possible failings and

Carlson’s interest in having his attorney of choice defend

him against serious charges. Thus, the trial court’s denial

of Carlson’s motion for substitution and a continuance

was arbitrary and in violation of the Sixth and Fourteenth

Amendments.

Finally, we analyze whether the denial of Carlson’s

right to retain his chosen counsel had an “adverse effect”

on the presentation of his case. Under Rodriguez, such

adverse effect

means an identifiable difference in the quality of

representation between the disqualified counsel and

the attorney who represents the defendant at trial. The

difference does not have to be great enough to under-

mine confidence in the outcome—that is the stand-

ard under Strickland—but it must be enough to show

that the defendant’s representation suffered a set-

back from the disqualification.

382 F.3d at 675 (internal citations omitted). Rodriguez

went on to say that adverse effect might be shown if, for

example, “counsel failed to pursue a reasonable alter-

native defense strategy.” Id.

18 No. 07-3428

Our case easily meets this standard because Kaiser

failed to pursue the sensible defense strategy advocated

by Shellow. In the motion for substitution and in her

statement to the court, Shellow explained that she

wished to explore Gino’s motives for making the allega-

tion. She planned to engage an expert (whom she identi-

fied by name) regarding a number of questions, in-

cluding issues raised by Gino’s reporting of the assaults

to Rawhide staff four to six years after they allegedly

occurred. Shellow also wanted to present evidence that

Gino was aware that Carlson had previously been con-

victed of child sexual abuse (and thus knew that a

similar allegation against him would be taken seriously)

and that Gino had previously denied any sexual contact

with Carlson. This strategy would have forced Carlson

to divulge the nature of his prior conviction—which is

why Kaiser did not want to pursue it—but it also

would have elicited Gino’s prior inconsistent statement

and undermined his credibility. Because this was a rea-

sonable alternative defense, the trial court’s denial of

Carlson’s right to retain his chosen counsel had an ad-

verse effect on the presentation of his defense. For these

reasons, Carlson is entitled to his release from custody

unless the State gives him a new trial with 180 days.

For these reasons, the judgment of the district court

granting petitioner’s application for a writ of habeas

corpus is A FFIRMED.

USCA-02-C-0072—5-19-08