Wilkerson v. Klem

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

6-28-2005

Wilkerson v. Klem

Precedential or Non-Precedential: Precedential

Docket No. 03-2842

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PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

FOR THE THIRD CIRCUIT

NO. 03-2842

MELVIN E. WILKERSON,

Appellant

v.

EDWARD KLEM;

ATTORNEY GENERAL OF PENNSYLVANIA

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil Action No. 01-cv-01501)

District Judge: Hon. James M. Munley

Argued December 14, 2004

BEFORE: AMBRO, VAN ANTWERPEN and

STAPLETON, Circuit Judges

(Opinion Filed: June 28, 2005)

Mary Gibbons, Esq. (Argued)

600 Mule Road

Holiday Plaza III

Toms River, NJ 08757

Attorney for Appellant

James P. Barker, Esq. (Argued)

Francis T. Chardo, Esq.

Deputy District Attorney

Dauphin County Courthouse

Front & Market Streets

Harrisburg, PA 17101

Attorney for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this habeas corpus proceeding brought pursuant to 28

U.S.C. § 2254, Appellant Wilkerson claims that the state trial

2

court wrongfully deprived him of his Sixth Amendment right to

counsel. The District Court considered whether the state court’s

decision rejecting that claim was contrary to, or an unreasonable

application of, Supreme Court precedent and concluded that it

was not. We agree and will affirm.

I.

Wilkerson was charged in a Pennsylvania court with

retail theft and robbery of a motor vehicle. At a March 16,

1998, hearing, he informed the court that he wanted his current

counsel to “step down,” and the court allowed counsel to

withdraw. App. at 42-43. It then set April 13, 1998, as

Wilkerson’s trial date and advised him as follows:

Now, Mr. Wilkerson, that’s your new trial date.

That’s less than 30 days. You can’t get a lawyer

on April 12 and expect him to know how to

handle your case the next day. You need to get a

lawyer within the next several days so that that

lawyer will have an opportunity to engage in

discovery with the District attorney, to evaluate

your case, interview witnesses, interview you, and

that takes a lot of time. There isn’t much time.

So we will proceed with your trial on April the

13th. You or your family has to get busy and hire

a lawyer within the next several days.

I guess I ought to also tell you that if you can’t

afford private counsel, you have the right to the

3

free services of the Public Defender’s Office. So

if you can’t come up with the money, I would say

by the end of this week, you’d better be going to

the Public Defender then right away.

App. at 45-46.

Wilkerson appeared on April 13, 1998, without counsel

for the charges to be tried that day, although an attorney from

the Public Defender’s Office who was representing him on

another charge happened to be present. Wilkerson advised the

court that his family was in the process of trying to engage a

lawyer, but he had not yet heard whether they had been

successful. The court decided to proceed to trial and appointed

the attorney from the Public Defender’s Office as stand-by

counsel to assist Wilkerson in his self-representation. The court

explained its decision as follows:

I made it very clear to you when we continued

this case last term in March when Mr. Dils was

standing by your side, that you would need new

counsel.

***

You knew this case was coming up today. You

knew you needed an attorney, and I don’t know

why you didn’t apply for one.

We’re not going to delay the system, delay justice,

and inconvenience witnesses while you fool

4

around in deciding to get an attorney or not.

It doesn’t make any sense that your family is

looking for a lawyer for you on one charge, and at

the same time you’re applying for a public

defender in another case. You can afford counsel

or you can’t.

If you can’t afford counsel, you should have gone

to the Public Defender’s Office for this charge as

well as the other. I think you’d qualify since

you’re under a state prisoner sentence right now,

but be that as it may, we’re taking this case to

trial.

App. at 52-53.

Following his conviction, Wilkerson appealed to the

Superior Court of the Commonwealth of Pennsylvania, arguing

inter alia that he had been denied his right to counsel. The

Superior Court affirmed, concluding that Wilkerson had

“forfeited” his right to counsel. In the court’s view, Wilkerson’s

case was governed by Commonwealth v. Wentz, 421 A.2d 796

(Pa. Super. Ct. 1980), where it had held as follows:

“. . . a criminal defendant who has been duly

notified of the date of his trial, and who has been

advised to obtain counsel to represent him and

who, nevertheless, appears in court on the

scheduled date without counsel and with no

reasonable excuse for the lack thereof and no

5

concrete plans for the obtaining of counsel has

waived his right to counsel.”

App. at 36 (quoting Wentz, 421 A.2d at 800). While the

Superior Court quoted this passage from Wentz cast in terms of

“waiver,” it made clear that this was a case in which the

defendant had forfeited his right to counsel by his conduct and

not one involving a voluntary waiver of that right.

The Supreme Court of Pennsylvania declined to review

Wilkerson’s case. The District Court denied him habeas relief,

and we granted a certificate of appealability only on the issue of

whether Wilkerson had been denied his right to counsel.

II.

Under provisions of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), habeas

corpus relief from a state conviction may be granted only if the

state court decision being challenged “was contrary to, or

involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United

States.” In Williams v. Taylor, 529 U.S. 362 (2000), the

Supreme Court clarified these two bases for invalidating a state

conviction on habeas review. It held that “contrary to . . . clearly

established federal law” means just that – “diametrically

different, opposite in character or nature, or mutually opposed.”

Id. at 405. Moreover, the state court judgment must not merely

be contrary to law as articulated by any federal court. It must

contradict “clearly established” decisions of the United States

6

Supreme Court alone.1 Id. This can happen in one of two ways:

either the state court ignores or misapprehends clear precedent

or it “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court]

precedent.” Id. at 406.

The Court in Williams further explained that an

“unreasonable application” of Supreme Court precedent occurs

when a state court applies the correct rule to specific facts in an

objectively unreasonable way. Id. at 409; see also Mitchell v.

Esparza, 540 U.S. 12, 17-18 (2003). A court that unreasonably

extends an established rule to a new context where it should not

apply or, in the alternative, unreasonably fails to extend such a

rule to a new context where it should apply may be deemed to

have unreasonably applied the correct rule. Williams, 529 U.S.

at 407.

These governing rules were recently applied by our Court

in a context similar to this one in Fischetti v. Johnson, 384 F.3d

140 (3d Cir. 2004). There, a state court denied Fischetti’s

motion for the appointment of new counsel, finding that the

previously appointed counsel was providing effective

1

At the end of the day, AEDPA “confines the authorities on

which federal courts may rely” in a habeas case to Supreme

Court decisions. Lewis v. Johnson, 359 F.3d 646, 652 (3d Cir.

2004); see also Dunn v. Colleran, 247 F.3d 450, 457 (3d Cir.

2001); Hameen v. Delaware, 212 F.3d 226, 234-43 (3d Cir.

2000) (analyzing Supreme Court cases).

7

representation. The court gave Fischetti three options: continue

to trial with present counsel representing him, represent himself

with present counsel assisting as co-counsel, or represent

himself without co-counsel. When Fischetti declined all three

options, the court ordered the trial to go forward with Fischetti

representing himself. Following conviction and direct appeal,

Fischetti sought habeas relief in the federal courts.

On appeal from the District Court’s dismissal of his

habeas petition, this Court began its analysis by cautioning that

“at the outset, we must articulate the issue presented to the state

court precisely.” Id. at 150. It then framed the issue as whether

Fischetti, by his conduct, had forfeited his Sixth Amendment

right to counsel:

Here, Fischetti refused to make a choice between

proceeding with current counsel and proceeding

pro se. Effectively, he sought to defeat the trial

court’s denial of his motion for yet another new

counsel. In essence, the state court treated him

not as if he had waived the right to his attorney

but as having forfeited that right. See Goldberg,

67 F.3d at 1101-01. We must therefore examine

whether there is “clearly established” Supreme

Court law on forfeiture of the right to counsel.

Id. at 150.

Having thus defined the issue, we quickly concluded that

the state court’s ruling was not “contrary to . . . clearly

established” Supreme Court law within the meaning of 25

8

U.S.C. § 2254(d)(1):

[T]he Court’s established precedent in this area

has not expressly dealt with the matter of

forfeiture of counsel, which is the exact issue

here. As we have discussed, forfeiture and

voluntary waiver are conceptually separate.

Moreover, the Supreme Court’s prior decisions

have not involved facts that are “materially

indistinguishable” from the facts surrounding

Fischetti’s actions in this case. See Williams, 529

U.S. at 406, 120 S.Ct. 1495; Moore, 255 F.3d at

107. It follows that the state court ruling here was

not contrary to federal law as articulated by

decisions of the Supreme Court.

Id.

We then turned to the issue of whether the state court had

unreasonably applied Supreme Court precedent. Based

primarily on Supreme Court cases involving the constitutional

right to self-representation,2 we predicted that the Supreme

Court would hold that Fischetti had not forfeited his right to

counsel. We indicated that, if we were reviewing a federal

conviction, we would rule that the trial court erred in not

directing the trial to go forward with him being represented by

his then present counsel. We stressed, however, that this was

not a permissible approach in reviewing a state court conviction:

2

See, e.g., Martinez v. California, 528 U.S. 152, 161 (2002).

9

[I]f our rule on habeas review were to determine

if the state judge properly extrapolated the general

principles that can be derived from Faretta,

Patterson, and Martinez to this different factual

setting, we might disagree with the state court

ruling.

That is not our role. In reviewing the

reasonableness of the state courts’ application of

Supreme Court precedent, we must use as our

point of departure the specific holdings of the

Court’s decisions. When assessing whether the

state court acted reasonably in applying or

refusing to apply that precedent, we must be

mindful that the issue is whether Supreme Court

law “dictated” a result in our case, Teague, 489

U.S. at 301, 109 S.Ct. 1060 (plurality); see

Moore, 255 F.3d at 104-05, or whether the

circumstances presented here were “closely

analogous” to those that formed the basis of

earlier high court decisions, Penry, 492 U.S. at

314, 109 S.Ct. 2934 (internal quotations and

citations omitted).

Id. at 150-51.

Once our analysis in Fischetti was confined to “specific

holdings” of Supreme Court decisions and to asking whether

those holdings and “closely analogous” circumstances

compelled a result contrary to that reached by the state court, we

could find no Supreme Court precedent that could be fairly cited

10

as rendering the state court’s decision unreasonable. We noted

that “the Supreme Court [had not] expressly ruled out forfeiture

of counsel.” Id. at 151. On the contrary, we observed that the

Supreme Court precedents, while not dealing with forfeiture of

the right to counsel, provided a “basis to conclude, as the state

judge did, that defiant behavior by a defendant can properly cost

that defendant some of his Sixth Amendment protections if

necessary to permit a trial to go forward in an orderly fashion.”

Id. at 151 (citing Taylor v. United States, 414 U.S. 17 (1974)

(holding that, following failure of the defendant to return from

recess, “the trial could continue because the court’s power to try

a case ‘may not be defeated by conduct of the accused that

prevents the trial from going forward’”); and Illinois v. Allen,

397 U.S. 337 (1970) (holding that, following disruptive

behavior and after being warned by a judge, a defendant could

be excluded from the courtroom to allow the trial to proceed)).

We then went on to note that “additional support for the

reasonableness of the state court’s application of Supreme Court

precedent” could be found in our own decisions and those of

other Courts of Appeals. Id. at 151. We summarized that case

law as follows:

None of these cases approves the specific

decision made by the trial judge here. But the

appellate cases do establish that the Supreme

Court’s general right to counsel decisions are

reasonably read as qualified by the trial court’s

power to remedy abuse of that right through

forfeiture. Further, none of these cited appellate

cases saw in the Supreme Court’s precedents any

clear guidance as to the precise standard to be

11

applied before forfeiture can be triggered. Put

another way, the Supreme Court has not fully

defined when a defendant’s misconduct or

defiance warrants a forfeiture. Our canvass of

decisions of our own and sister courts reinforces

our view that the state court order that Fischetti

proceed without counsel was not an objectively

unreasonable application of Supreme Court case

law under the Sixth Amendment.

Id. at 152.

Applying the analysis and rationale of Fischetti to this

case, we reach a similar conclusion. The precise issue presented

to the state court in this case was whether a criminal defendant

who has been duly notified of the date of his trial, who has been

advised to obtain counsel in sufficient time to be ready for trial,

and who appears on the scheduled date without counsel and with

no reasonable excuse for his failure to have counsel present,

forfeits his Sixth Amendment right to counsel.

Turning to the first prong of § 2254(d)(1), there is no

Supreme Court precedent dealing with the forfeiture of counsel,

and no prior decision of that Court involves facts “materially

indistinguishable” from those presented here. Accordingly, the

state court decision we review is not “contrary to . . . clearly

established” Supreme Court law.

With respect to whether the decision we review involves

an unreasonable application of clearly established Supreme

Court law, we emphasize, as did the Fischetti Court, that “we

12

must use as our point of departure the specific holdings of the”

Supreme Court. Id. at 151. It remains true that there are no

Supreme Court decisions involving forfeiture of the right to

counsel and a fortiori no decisions providing any clear guidance

as to the “standard to be applied before [it can be concluded

that] a defendant’s misconduct warrants a forfeiture.” Id. at

152. It necessarily follows that the state court’s decision here

was not an unreasonable application of Supreme Court

precedent.

While, as we have noted, court of appeals precedent is

irrelevant to the ultimate issue before us, we note that here, as in

Fischetti, a review of those cases provides a basis for the view

taken by the state court in this case. We explained in Fischetti,

for example:

In United States v. Goldberg, 67 F.3d 1092 (3d

Cir. 1995), we explained that a defendant could

lose the right to counsel by physically assaulting

his attorney or (in the case of a financially able

defendant) refusing to retain any counsel in the

first place. We apply this rule of forfeiture not to

punish defendants but to preserve the ability of

courts to conduct trials.

***

Other circuits have also interpreted

Supreme Court decisions to be consistent with

forfeiture of the right to counsel. These cases

have interpreted the law to require defendants to

13

go to trial unrepresented when they have failed to

hire counsel within a reasonable time, United

States v. Bauer, 956 F.2d 693 (7th Cir. 1992);

United States v. Mitchell, 777 F.2d 248 (5th Cir.

1985).

Id. at l46, 152 (emphasis added).

Our colleague writing in dissent correctly observes that

the “unreasonable application” segment of § 2254(d)(1)

authorizes habeas relief from a state judgment “if, under clearly

established [Supreme Court] law, the state court was

unreasonable in refusing to extend a governing legal principle

to a context in which the principle should have controlled” or

unreasonably extended that principle to a situation in which it

should not have controlled. Ramdass v. Angelone, 530 U.S. 156

(2000) (plurality opinion). Our colleague finds this significant

because, in his view, Wilkerson did not engage in any “serious

misconduct” or, more specifically, because “Wilkerson did not

act in a way that our Supreme Court has held leads to a finding

of forfeiture of constitutional rights generally or that the lower

courts have subsequently held leads to a finding of forfeiture of

the right to counsel specifically.” Dissenting Op. at 10.

The dissent’s analysis ignores the fact that the

unreasonable extension doctrine still requires reference to a

specific “legal principle from the Supreme Court.” Gattis v.

Snyder, 278 F.3d 222, 228 (3d Cir. 2002). No Supreme Court

precedent exists to support the position that the type of “serious

misconduct” described in the dissent is “necessary to find

forfeiture of a constitutional right.” Dissenting Op. at 13.

14

Indeed, our colleague concedes that no clear forfeiture standard

can be found in Supreme Court precedent or in the decisions of

lower appellate courts. Id. at 9. The dissent goes on, however,

to express the belief that circuit court forfeiture decisions

“contain common factors from which the principle can be

gleaned that the federal appellate courts will not find a forfeiture

absent a defendant’s defiant behavior. . . .” Id. (emphasis

added).

Even if this Court could glean from federal circuit court

precedents a serious misconduct forfeiture standard which does

not encompass Wilkerson’s behavior in this case, that does not

compel the conclusion that the state court’s forfeiture finding

was an objectively unreasonable application of Supreme Court

precedent under section 2254. Because no clear forfeiture

standard has been articulated by the Supreme Court, it cannot be

said that the state court in this case acted unreasonably when it

found forfeiture, even though Wilkerson’s actions fell short of

the sort of “extremely serious misconduct” that this Court found

present in United States v. Leggett, 162 F.3d 237 (3d Cir. 1998),

and Goldberg, 67 F.3d at 1102. It is not sufficient to say that

Wilkerson’s actions did not rise to the level of conduct that has

constituted forfeiture in the past; the issue is whether the state

court’s application of forfeiture to Wilkerson’s case was

precluded by Supreme Court precedent. In this regard, we

re-state our position in Fischetti that the Supreme Court’s

holdings in Illinois v. Allen, 397 U.S. 337 (1970), and Taylor v.

United States, 414 U.S. 17 (1973), provide state courts with a

“basis to conclude” that certain obstructive conduct by a

defendant may constitute a forfeiture of Sixth Amendment

protections. Fischetti, 384 F.3d at 151.

15

As we stressed in Fischetti, “forfeiture and voluntary

waiver are conceptually separate,” and the dissent’s waiver

precedents are beside the point. Allen and Taylor are of interest

to the extent they recognize that a criminal defendant may forfeit

other important constitutional rights by engaging in conduct that

has the potential of “prevent[ing] the trial from going forward.”

Fischetti, 384 F.3d at 151. But the issue and facts involved

there are no closer to those here than to those in Fischetti. They

certainly do not compel a conclusion that a trial judge must

abort a scheduled trial under the facts presented here.

With respect to whether or not the state court could

reasonably apply the Supreme Court’s forfeiture analysis from

Allen and Taylor to Wilkerson’s case, we perceive no material

difference between the potential for trial disruption presented

here and in Fischetti. Whether there is such a material

difference might present a litigable issue – one on which

reasonable minds could differ, but that would be relevant only

to whether our panel is bound by Fischetti. It has nothing to do

with whether the state court’s decision was an unreasonable

application of established Supreme Court law.

III.

The judgment of the District Court will be affirmed.

16

AMBRO, Circuit Judge, Dissenting

I agree with my colleagues in the majority that the

Pennsylvania decision in this case was not contrary to clearly

established federal law because there is no Supreme Court

precedent addressing forfeiture of the right to counsel.

However, I part with my colleagues on the issue of whether that

decision—that Melvin Wilkerson forfeited his right to

counsel—was an unreasonable application of Supreme Court

precedent on forfeiture of constitutional rights. I believe that the

state court unreasonably extended the Court’s forfeiture

precedent to Wilkerson’s case instead of applying the

appropriate analytical rubric—precedent on waiver of the right

to counsel. I therefore respectfully dissent.

A. Unreasonable Extension of Forfeiture Precedent

If we determine, as we have in this case, that a state court

decision is not contrary to applicable Supreme Court precedent,

we must “advance to the second step in the [habeas]

analysis—whether the state court decision was based on an

‘unreasonable application of Supreme Court precedent.’” 3

Affinito v. Hendricks, 366 F.3d 252, 257 (3d Cir. 2004) (quoting

Werts, 228 F.3d at 196). This prong is met “‘if the state court

identifies the correct governing legal principle from [the

Supreme] Court’s decision but unreasonably applies that

3

We have previously emphasized that the “contrary to” and

“unreasonable application of” provisions of 28 U.S.C.

§ 2254(d)(1) must be given independent meaning. Werts v.

Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (noting that this point

was a focus of Justice O’Connor’s portion of the plurality

opinion in Williams v. Taylor, 529 U.S. 362 (2000)).

17

principle to the facts of the prisoner’s case.’” Id. (quoting

Williams, 529 U.S. at 413). As the majority opinion states, a

state court decision may also be found to be an unreasonable

application of Supreme Court precedent if “the state court either

unreasonably extends a legal principle from the Supreme Court

precedent to a new context where it should not apply or

unreasonably fails to extend that principle to a new context

where it should apply.” Gattis v. Snyder, 278 F.3d 222, 228,

234 (3d Cir. 2002) (citing Williams, 529 U.S. at 407).

The “unreasonable extension” or “failure to extend”

approach to the unreasonable application prong of 28 U.S.C

§ 2254(d)(1) has not been fully fleshed out by the Supreme

Court. The Court stated in Williams that this approach, though

“perhaps [] correct[,] . . . does have some problems of

precision,” 4 and noted further that it was not required “to decide

4

Regarding the “problems of precision” inherent in this

approach, Justice O’Connor wrote:

Just as it is sometimes difficult to

distinguish a mixed question of law

and fact from a question of fact, it

will often be difficult to identify

sep arately tho se state-c o u rt

d e c i s io n s t h a t i n v o lv e a n

unreasonable application of a legal

principle (or an unreasonable

failure to apply a legal principle) to

a new context. Indeed, on the one

hand, in some cases it will be hard

to distinguish a decision involving

18

how such ‘extension of legal principle’ cases should be treated

under § 2254(d)(1).” 529 U.S. at 408–09 (discussing the Fourth

Circuit’s approach to the unreasonable application inquiry); see

also Marshall v. Hendricks, 307 F.3d 36, 51 n.2 (3d Cir. 2002)

(noting that the Supreme Court discussed but did not specifically

endorse the “extension of legal principle” approach in

Williams); Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir.

2004) (stating that the “Supreme Court has not fully fleshed out

this ‘extension of legal principle’ approach”).

Soon after Williams was decided, however, Justice

Kennedy articulated the governing principles for analyzing the

unreasonable application prong of § 2254(d)(1) and stated: “A

state determination may be set aside under this standard if, under

clearly established federal law, the state was unreasonable in

refusing to extend the governing legal principle to a context in

which the principle should have controlled.” Ramdass v.

an unreasonable extension of a

legal principle from a decision

involving an unreasonable

application of law to facts. On the

other hand, in many of the same

cases it will also be difficult to

distinguish a decision involving an

unreasonable extension of a legal

principle from a decision that

arrives at a conclusion opposite to

that reached by this Court on a

question of law.

Williams, 429 U.S. at 408 (internal quotation omitted).

19

Angelone, 530 U.S. 156, 166 (2000) (plurality opinion). Our

Court and all but one of our sister Circuits have since

indicated—or expressly held—that the “extension of legal

principle” approach to the unreasonable application prong of the

habeas inquiry is a viable mode of analysis. See, e.g., Brinson

v. Vaughn, 398 F.3d 225, 232 (3d Cir. 2005) (stating that “‘a

state court decision fails the ‘unreasonable application’ prong .

. . if . . . the state court either unreasonably extends a legal

principle from the Supreme Court’s precedent to a new context

where it should not apply or unreasonably refuses to extend the

principle to a new context where it should apply.’” (quoting

Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003)

(internal quotation omitted))); Gibbs v. Frank, 387 F.3d 268,

272, 275 (3d Cir. 2004) (same); see also Jackson v. Coalter, 337

F.3d 74, 81 (1st Cir. 2003) (same); Kennaugh v. Miller, 289

F.3d 36, 45 (2d Cir. 2002) (noting that Williams and Ramdass

left open the question whether a state court’s failure to extend

clearly established Supreme Court precedent could constitute an

unreasonable application of clearly established federal law and

holding that it could); Tucker v. Catoe, 221 F.3d 600, 605 (4th

Cir. 2000) (stating that the unreasonable application prong is

met if the state court decision unreasonably extends or

unreasonably fails to extend Supreme Court precedent to a new

context); Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004)

(same); Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005)

(same); Owens v. Frank, 394 F.3d 490, 497 (7th Cir. 2005)

(same); Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001)

(same); Kesser v. Cambra, 392 F.3d 327, 336 (9th Cir. 2004)

(same); Carter v. Ward, 347 F.3d 860, 864 (10th Cir. 2003)

(same); but see Hawkins v. Alabama, 318 F.3d 1302, 1307 &

n.3, 1309 (11th Cir. 2003) (holding that “the question of when

20

a state court’s refusal to extend a legal principle would

constitute, under AEDPA, an unreasonable application of

federal law comes to us unsettled,” but that “[t]he refusal to

extend [the precedent at issue] to the facts of this case was

objectively reasonable” and noting, in a lengthy discussion of

the “extension of legal principle” approach, that state courts are

not required to widen or enlarge rules from Supreme Court

precedent in order for their decisions to be found objectively

reasonable).

I believe that this case presents us with an opportunity to

apply the “unreasonable extension” approach that has been oft-

stated (but little used) by our Court and the other Courts of

Appeal because, in my view, the Commonwealth court here

unreasonably extended principles from the Supreme Court’s

forfeiture precedents to a new context where they should not

apply—i.e., a situation where the defendant had not engaged in

any serious misconduct or disruption of proceedings. The

Supreme Court has twice held that, in certain situations, a

criminal defendant may forfeit constitutional rights. See Illinois

v. Allen, 397 U.S. 337 (1970) (forfeiture of the right to be

present at trial); Taylor v. United States, 414 U.S. 17 (1973) (per

curiam) (same). Both of those cases involved defendants who,

through their misconduct, disrupted the orderly proceeding of

their trials.

In Allen, the Court held that a defendant who had

repeatedly engaged in unruly behavior during his trial (including

threatening to turn the judge into a “corpse” and making other

abusive remarks, throwing his attorney’s files on the floor, and

arguing with the judge), despite warnings from the judge that

such behavior would result in the defendant’s removal from the

courtroom, had “lost his Sixth and Fourteenth Amendment

21

rights to be present throughout his trial.” 397 U.S. at 339–40,

346. In Taylor, the Court determined that a defendant who had

mysteriously, though voluntarily, disappeared from his trial had

“effectively waived” his right to be present even absent a

warning from the trial judge that the trial would proceed in his

absence. 414 U.S. at 17, 20. The Court emphasized that

“[p]etitioner had no right to interrupt the trial by his voluntary

absence.” Id. at 20. The legal principle to be drawn from these

precedents is that forfeiture of a constitutional right will not be

found absent defiant behavior on the part of a criminal

defendant that may disrupt the trial.

As stated by the majority opinion, our Court has relied on

the above precedents as touchstones in upholding, on habeas

review, a state court decision that a criminal defendant had

forfeited his Sixth Amendment right to counsel, as has the Court

of Appeals for the Second Circuit. See Fischetti, 384 F.3d at

150, 153 (holding that the state court’s conclusion that

defendant had forfeited his right to counsel was neither contrary

to nor an unreasonable application of clearly established federal

law); Gilchrist v. O’Keefe, 260 F.3d 87, 97, 100 (2d Cir. 2001)

(same). We determined in Fischetti (in an opinion that I joined)

that Allen and Taylor, taken together, “certainly provide a basis

to conclude . . . that defiant behavior by a defendant can

properly cost the defendant some of his Sixth Amendment

protections if necessary to permit trial to go forward in an

orderly fashion.” Fischetti, 384 F.3d at 150 (emphases added);

see also Gilchrist, 260 F.3d at 97 (concluding that Allen and

Taylor “stand for the proposition that, even absent a warning, a

defendant may be found to have forfeited certain trial-type

constitutional rights based on certain types of misconduct”

(emphasis added)). Thus, both the Fischetti and Gilchrist

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decisions recognized that the Supreme Court’s forfeiture

precedents involved a common factor—misconduct on the part

of the defendant. Neither Court, however, gave any indication

that it would uphold a finding of forfeiture, even on our limited

§ 2254 habeas review, when there was no “defiant behavior” on

the defendant’s part.

In Fischetti, which my colleagues in the majority believe

controls our decision in this case, the defendant, who was

represented by his third court-appointed counsel, decided on the

eve of trial that he was unwilling to proceed with that counsel

but was also unwilling to represent himself. 384 F.3d at 145.

After determining that the defendant’s complaints about his

counsel were “unfounded,” the trial judge refused to appoint

new counsel, and the defendant was forced to go to trial without

an attorney even though he had not been advised of the

consequences of self-representation. Id. at 145–46. Our opinion

in Fischetti noted that this behavior “was part of a pattern of

uncooperative conduct through which Fischetti repeatedly

complained about counsel and sought to delay or derail his

second trial.” Id. at 145. In the context of our determination

that the state court’s decision that the defendant had forfeited his

right to counsel was not contrary to nor an unreasonable

application of clearly established federal law, we emphasized

the defendant’s “obduracy” and the fact that “[t]his was not a

circumstance in which Fischetti was simply forced to go to trial

without counsel or where he received an inadequate waiver

hearing . . . .” Id. at 150–151 (emphasis added). Moreover, in

Gilchrist, the Second Circuit explicitly stated that “the lack of

Supreme Court precedent specifically addressing forfeiture of

the right to counsel does not mean that any determination that

such a fundamental right has been forfeited, even if based on an

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utterly trivial ground, would survive habeas review.” 260 F.3d

at 97.

The view that a criminal defendant must have engaged in

some relatively serious misconduct, or have acted to delay or

otherwise disrupt his or her trial, in order to be found to have

forfeited his or her right to counsel is supported by the holdings

of our Court and our sister Circuits in direct review cases raising

this issue.5 In United States v. Goldberg, 67 F.3d 1092 (3d Cir.

1995), we surveyed Supreme Court and federal appellate

precedent regarding forfeiture, particularly forfeiture of the right

to counsel, and found that “because of the drastic nature of the

sanction, forfeiture would appear to require extremely dilatory

conduct.” Id. at 1101. We later applied this standard in United

States v. Leggett, 162 F.3d 237 (3d Cir. 1998), and held that a

defendant’s unprovoked physical attack on his attorney

“qualifie[d] as the sort of ‘extremely serious misconduct’ that

amounts to the forfeiture of counsel.” Id. at 250 (quoting

Goldberg, 67 F.3d at 1102)). Accord United States v. Thomas,

357 F.3d 357, 363 (3d Cir. 2004) (holding that defendant

forfeited right to counsel when he threatened and orally abused

counsel, forced the filing of meritless claims, and refused to

cooperate with counsel in “relationships with four attorneys.”).

5

“In determining whether a state decision is an unreasonable

application of Supreme Court precedent, this [C]ourt has taken

the view that decisions of federal courts below the level of the

United States Supreme Court may be helpful to us in

ascertaining the reasonableness of states’ application of clearly

established Supreme Court precedent.” Fischetti, 384 F.3d at

149.

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Other federal courts have held that defendants forfeited their

right to counsel when an attorney’s allegation that the defendant

threatened to kill him was undisputed, United States v.

Thompson, 335 F.3d 782, 785 (8th Cir.2003), when the

defendant’s behavior was “repeatedly abusive, threatening, and

coercive,” United States v. McLeod, 53 F.3d 322, 326 (11th Cir.

1995), when the defendant “stubborn[ly] refus[ed]” to pay to

retain counsel even when he could afford to do so, United States

v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992), and when

defendants failed to retain counsel within a reasonable time

where their insistence on counsel of their choice was “used as a

device to manipulate or subvert the orderly procedure of the

court.” United States v. Mitchell, 777 F.2d 248, 257–58 (5th

Cir. 1985) (holding that district court did not abuse its discretion

in forcing defendants to proceed to trial unrepresented when

they “requested [a] continuance in bad faith and for the purpose

of delay” and when one defendant attempted “to manipulate the

court’s schedule by retaining an attorney he knew to have a

conflict.”).

I recognize that in Fischetti we characterized the above

precedents (specifically Leggett, McLeod, Bauer, and Mitchell)

as not providing “any clear guidance as to the precise standard

to be applied before forfeiture can be triggered.” 384 F.3d at

152. Upon further review, I continue to agree that these cases

do not create a bright-line rule as to when the federal courts will

find that a criminal defendant has forfeited a constitutional right,

particularly the right to counsel. However, these cases do

contain common factors from which the principle can be

gleaned that the federal appellate courts will not find a forfeiture

absent a defendant’s defiant behavior—whether it took the form

of physical abuse or of attempts to delay and manipulate the

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judicial system. See, e.g., Goldberg, 67 F.3d at 1094–96, 1102

(declining to hold that defendant, who had asked for a

continuance to obtain new counsel and appeared to be

attempting to manipulate his right to counsel to delay his trial,

forfeited that right because he had not engaged in the type of

“extremely serious misconduct” that would warrant a forfeiture

finding); United States v. Meeks, 987 F.2d 575, 579 (9th Cir.

1993) (holding that district court erred by presuming a waiver of

the right to counsel and forcing a defendant, who had attempted

to change counsel several times, to represent himself at trial

because the trial court, not the defendant, was in control of

whether the defendant continued to be represented by counsel).

Here, Wilkerson simply did not act in a way that our

Supreme Court has held leads to a finding of forfeiture of

constitutional rights generally or that the lower federal courts

have subsequently held leads to a finding of forfeiture of the

right to counsel specifically. The facts of this case are aptly

summarized in the majority opinion. They demonstrate that the

only conduct on Wilkerson’s part that could conceivably be

characterized as “defiant behavior” or “misconduct” was his

failure to secure counsel by his trial date as he was instructed to

do by the trial judge. There is, however, no evidence in the

record (other than pure speculation by the trial judge) that

Wilkerson failed to obtain an attorney by that date in a deliberate

effort to delay the trial or manipulate proceedings in any way.

To the contrary, Wilkerson represented to the trial judge that his

family was in the process of obtaining counsel for him and that

this had been delayed because it was difficult for him to make

phone calls from prison. The record shows that Wilkerson was

attempting to comply with the judge’s order, not seeking to defy

it.

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In light of these facts, I conclude that the Pennsylvania

court unreasonably extended clearly established Supreme Court

precedent on the forfeiture of constitutional rights to a context

in which it should not apply—i.e., a situation in which there is

no evidence of any misconduct on Wilkerson’s part. Although

the Court has not spoken directly on forfeiture of the right to

counsel, the above survey of federal appellate case law reveals

that the lower federal courts have interpreted the Supreme

Court’s more general forfeiture precedent as being applicable

only to situations where the defendant has actively engaged in

certain types of misconduct. The Supreme Court cases

themselves—Allen and Taylor—involved defendants who had

engaged in serious misconduct. Hence the extension of that

precedent to this case was unreasonable.

B. Application of Waiver Precedent

I recognize that, in habeas review, we must look at the

state decision under review with some specificity and compare

it to Supreme Court precedent related to the particular factual

setting of the case at issue. My colleagues in the majority hold

that the existence of Supreme Court precedent regarding

forfeiture of constitutional rights precludes the application of

more general Supreme Court precedent regarding the

fundamental right to counsel and waivers of that right.

However, a corollary of my conclusion that the Pennsylvania

court unreasonably extended current forfeiture precedent to

Wilkerson’s case is that those precedents were not the proper

touchstone for the Commonwealth court to consider when

determining whether Wilkerson’s forced self-representation at

trial constituted a violation of his constitutional rights. Rather,

I believe that the Commonwealth court should have applied

27

Supreme Court precedent regarding waivers of the right to

counsel.

The Supreme Court has held that the right to counsel is

fundamental, Gideon v. Wainwright, 372 U.S. 335, 343 (1963),

and has long recognized that “courts indulge every reasonable

presumption against waiver of constitutional rights and . . . do

not presume acquiescence in the loss of fundamental rights.”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation

omitted). Supreme Court precedent therefore requires that

“[a]lthough a defendant need not himself have the skill and

experience of a lawyer in order to competently and intelligently

choose self-representation, he should be made aware of the

dangers and disadvantages of self-representation, so that the

record will establish that he knows what he is doing and his

choice will be made with eyes open.” Faretta v. California, 422

U.S. 806, 835 (1975) (internal quotation omitted); see also Iowa

v. Tovar, 541 U.S. 77, 81 (2004) (“Waiver of the right to

counsel, as of constitutional rights in the criminal process

generally, must be a ‘knowing, intelligent ac[t] done with

sufficient awareness of the relevant circumstances.” (quoting

Brady v. United States, 397 U.S. 742, 748 (1970))).

Wilkerson did not knowingly or voluntarily waive his

right to counsel in this case. He vehemently protested against

representing himself both before the trial judge forced him to go

to trial pro se with only standby counsel for assistance and

during the trial itself. See, e.g., App. at 65–66 (“I want to make

this a matter of record right now, that I don’t agree to this, okay?

This representing myself. I don’t agree to this. I’m ignorant to

the fact. I’m not a lawyer. I don’t know what’s going on, and

this is not right.”); App. at 139 (“You know I don’t know what

I’m doing. I’m forced to do this. I’m naive of the whole

28

process.”).

Moreover, even assuming that some sort of waiver took

place, the trial judge also did not adequately warn Wilkerson of

the consequences of waiving the right to counsel. Although he

told Wilkerson that it was important for him to obtain a lawyer

quickly so that the lawyer could prepare for trial, he did not

inform Wilkerson of the dangers of self-representation. Thus,

the judge’s decision to force Wilkerson to represent himself at

trial in the face of his repeated protests, and without ensuring

that Wilkerson understood the consequences of any waiver,

violated his constitutional right to counsel.

In upholding the trial judge’s decision, the Pennsylvania

court, far from indulging every reasonable presumption against

waiver, leapt to the conclusion that Wilkerson had forfeited his

right to counsel. That decision was not only an unreasonable

extension of forfeiture precedent but was also contrary to, and

an unreasonable application of, Supreme Court precedent on

waiver of the right to counsel. Although that precedent may be

characterized as more general than the Court’s forfeiture

holdings, it is nevertheless applicable here as it is the precedent

that most closely deals with the factual situation with which we

are presented.

*****

To summarize, I would grant Wilkerson’s habeas petition

because I believe that this case does not have the element of

defiant behavior or misconduct that is necessary to find

forfeiture of a constitutional right and thus the Pennsylvania

court unreasonably extended forfeiture principles to a new

context where they should not apply. The right to counsel is one

of the cornerstones of our criminal justice system and, even on

habeas review, we should not lightly uphold state court

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decisions that find that this fundamental right has been forfeited

without a searching inquiry into whether general forfeiture

precedent has been reasonably extended to the particular case at

issue. See Gilchrist, 260 F.3d at 97. In stark contrast to

Fischetti, this is a case where Wilkerson was simply forced to go

to trial without counsel. Cf. Fischetti, 384 F.3d at 150–51. The

Court’s forfeiture precedent was unreasonably applied in lieu of

its waiver precedent, and I believe that Wilkerson would also be

entitled to habeas relief even if that precedent had been applied.

Thus I respectfully dissent.

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