Petition for Writ of Certiorari — Brooks v. Kingston
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Supreme Court, U.S.
(1 FILED
No, 04 644 NOV 10 2008
IN THE
Supreme Court of the United States
EppDIE L. BROOKS,
Petitioner,
Vv.
GARY R. MCCAUGHTRY,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
JEROLD S. SOLOVY *
ROBERT L. GRAHAM
JACOB I. CORRE
ALISON A. DIETERICHS
JENNER & BLOCK LLP
One IBM Plaza
Chicago, IL 60611
(312) 222-9350
* Counsel of Record
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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D£. 20001
l.
i
QUESTIONS PRESENTED
Whether in light of Godinez v. Moran, 509 US.
389 (1993), and Faretta v. California, 422 U.S.
806 (1975), the Seventh Circuit erred in
concluding, contrary to the majority of federal
appellate courts and state high courts that have
addressed this recurring issue, that the Sixth
Amendment permits a state criminal court to
require a defendant who wishes to represent
himself at trial to satisfy a standard of competency
higher than the standard of competency to stand
trial.
Whether, under 28 U.S.C. § 2254, this Court’s
opinions in Godinez and Faretta constitute
“clearly established Federal law” entitling a
convicted criminal defendant to obtain federal
collateral relief, where the state criminal court
rejected the defendant’s request to represent
himself at trial by applying a higher standard of
competency for self-representation than for
standing trial.
il
PARTIES TO THE PROCEEDING
The parties appearing here and below are (1) Eddie L.
Brooks, the petitioner listed in the caption, and (2) Gary R.
McCaughtry, Warden at the Waupun (Wisconsin)
Correctional Institution. -
iil
TABLE OF CONTENTS
QUESTIONS PRESENTED ...........ccscessessessesssssesssssssseescaseneens i
PARTIES TO THE PROCEEDING. .........c:sscscssessecessessesseeee ii
ON a sscenssemnonnie v
PETITION FOR WRIT OF CERTIORARI ...........sesseseeseeseee- 1
EE ELI SN ce es Oe 1
EET ASE oa aS 1
CONSTITUTIONAL PROVISION AND STATUTE
FES Sa SA NOCD ee 1
Re CUP UNE NN icici Fsesceciccecinies 2
REASONS FOR GRANTING THE WRIT .........eccscecseseeseeeee 4
I. THIS COURT SHOULD DETERMINE WHETHER
THE SIXTH AMENDMENT STANDARD
ARTICULATED IN GODINEZ AND FARETTA
PERMITS A STATE CRIMINAL COURT TO
REQUIRE A DEFENDANT TO DEMONSTRATE
A HIGHER DEGREE OF COMPETENCY TO
REPRESENT HIMSELF THAN TO STAND
TRIAL, A QUESTION ON WHICH THE OPINION
BELOW CONFLICTS WITH THE VIEWS OF THE
SIX OTHER FEDERAL COURTS OF APPEALS
AND A MAJORITY OF STATE HIGH COURTS |
THAT HAVE ADDRESSED THE QUESTION ............. 7
Il. THIS COURT SHOULD DETERMINE WHETHER
THE STANDARDS ARTICULATED IN GODINEZ
AND FARETTA CONSTITUTE “CLEARLY
ESTABLISHED FEDERAL LAW” ENTITLING A
CONVICTED CRIMINAL DEFENDANT TO
OBTAIN FEDERAL COLLATERAL RELIEF
UNDER 28 U.S.C. § 2254, ..cccscccossssscccssssssccsssesssssseeeseen 14
CONCLUSION
iv
Appendix A - Seventh Circuit Opinion...................... la-7a
Appendix B - District Court Judgment ..................04. 8a -17a
Appendix C - Wisconsin Supreme Court Denial of
UNIT sscccscnnesihantnanibinitesnidintintbatniticagtiaiaenidieanediiinaititiiia 18a
Appendix D - Wisconsin Court of Appeals
Ee icaiishcchicchacbiscinsssieiaensicnieninnetinsteiauabauilbeiedesti 19a - 25a
Appendix E - Trial Transcripts Excerpted from
the Circuit Court for Milwaukee County,
SRR IR ET OR eaTE S DRPlE RNS NEDO 26a - 44a
Appendix F - Amendment VI to the United States
IRIN: ccciinisinstitiaasiinsiiinnaeinstnisienduibitiaiadassanseddnsabamanidions 45a
v
TABLE OF AUTHORITIES
CASES
. Aron v. United States, 291 F.3d 708 (11th Cir.
BIND sixasiccassintenestatecssctapnseeipabiiaiadinesnaaaiiiaimsias 16
Batson v. Kentucky, 476 U.S. 79 (1986) ............secccssseeeeees 18
Brooks v. McCaughtry, 380 F.3d 1009 (7th Cir.
DIP) scesinsvnnsssentinsininiiniaiaiiiiincsiniaeaimniaaiiniaddal passim
Chadwick v. Janecka, 312 F.3d 597 (3d Cir. 2002).......... 16
Commonwealth v. Jermyn, 709 A.2d 849 (Pa.
SOD cnisitsiississcsstninnciitensditiigeatdaauianeiaastiaiauadnnianmusaimiamiaaslal 12
Commonwealth v. Simpson, 704 N.E.2d 1131
Cee, SDD wictevissnistsichictcsbedialinsammesieaiiatadiiaiiiaamaidiedbeniiaian 11
Dible v. Ault, No. C99-4010-MWB, 2000 US.
Dist. LEXIS 21404 (N.D. Iowa Oct. 20, 2000)............. 18
Dusky v. United States, 362 U.S. 402 (1960).................. 10
Faretta v. California, 422 U.S. 806 (1975) ......sss-s0e+: passim
In Re Fowlkes, 326 F.3d 542 (4th Cir. 2003)...............:00 16
Godinez v. Moran, 509 U.S. 389 (1993).........cscceeeee passim
Gomez v. Berge, No. 04-C-17-C, 2004 U.S. Dist.
LEXIS 16360 (W.D. Wis. Aug. 18, 2004) ............... 17
Gregg v. State, 833 A.2d 1040 (Md. 2003) .............2es0e 13
Hauck v. State, 36 P.3d 597 (Wyo. 2001)..........:.csceeeeeee 12
Kandies v. Polk, 385 F.3d 457 (4th Cir. 2004) ................. 18
Lamar v. State, 598 $.E.2d 488 (Ga. 2004) ......... eee 11
Lockyer v. Andrade, 538 U.S. 63 (2003) .........::sscssseeeees 17
vi
McGhee v. Jackson, Civ. No. 01-CV-73860-DT,
2002 U.S. Dist. LEXIS 21930 (E.D. Mich. Oct.
BG), SPUD ccoccncnscesanscensestecsinsnsistninnbensininaiadaaebapiinaaiaale 18
McKaskle v. Wiggins, 465 U.S. 168 (1984)................ 13, 14
Medina v. California, 505 U.S. 437 (1992) ........cccccccceeeees 14
Moxley v. Bennett, 291 F. Supp. 2d 212 (W.D.N.Y.
DOES) wxenscasesesetnicnistintntaniianiaainiaaamneeanaliii 18
Patterson v. New York, 432 U.S. 197 (1977) .........cccccec00ee 14
People v. Lego, 660 N.E.2d $71 (Ill. 1995) ........cccceeeeee 11
People v. Welch, 976 P.2d 754 (Cal. 1999) .0........cccccccceees 11
Rose v. Clark, 478 U.S. 570 (1986) ............cccccccessssseeseseees 13
Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001).............. 18
Shafer v. Bowersox, 329 F.3d 637 (8th Cir. 2003) ............. 8
Spears v. Stewart, 283 F.3d 992 (9th Cir. 2002)......... 16; 17
State v. Arguelles, 63 P.3d 731 (Utah), cert.
Gianahened, 1D4 S. Ce. SEB GSS D cavintstascntiintnnnnsiniiaibdiaiea 13
State v. Brooks, 607 N.W.2d 290 (Wis. 1999).......... 1,3, 19
State v. Camacho, 561 N.W.2d 160 (Minn. 1997) ........... 12
State v. Cooley, 608 N.W.2d 9 (Iowa 2000) ...........ccceees 11
State v. Jordan, 804 N.E.2d 1 (Ohio), cert.
dismissed, 73 U.S.L.W. 3273 (U.S. 2004)..............000 12
State v. Klessig, 564 N.W.2d 716 (Wis. 1997) .3, 10, 12, 13
State v. Wolff, 678 A.2d 1369 (Conn. 1996)..................00+ 11
Strickland v. Washington, 466 U.S. 668 (1984) ......... 13, 18
Teague v. Lane, 489 U.S. 288 (1989) .............cccceceeees 18, 19
Vii
United States v. Boigegrain, 155 F.3d 1181 (10th
SB scccncnepdeinennetAlescncnennittntnaniamnsnnseniiesitiionnsnainitiaena 8, 16
United States v. Ellerbe, 372 F.3d 462 (D.C. Cir.
Fe ceestniepntninennicanneintniniannn 7, 16
United States v. Frazier-El, 204 F.3d 553 (4th Cir
SE cccnantnnsarunniineieiniaiiatesaiisipiatapsiniabinebeiaaidaaimiabinaiidiinndainitiiatiee 8
United States v. Hernandez, 203 F.3d 614 (9th Cir
SED cnitesccuicanecsititttiniittaniinniemaeitasileiiiiaiiiaainlianibiaatiiiil 8, 16
United States v. Kaczynski, 239 F.3d 1108 (9th Cir
TT wicisinscsncesintehisanneecigiinieiseapedaiiiageietacasialleaoii 14
United States v. Peppers, 302 F.3d 120 (3d Cir.
SIT esssnceensocsntincictnininienseinenunsenseioitiitiiaiatintiiagesiisiaieiapaiienbadgenbeemuan 8
Williams v. Taylor, 529 U.S. 362 (2000)............... 15, 18, 19
STATUTES
FR is Bae A ievrtccenrncecetniecinisitnsiensittihatiisceinnimiieinntintanhnaaias l
yf i kT ol} » — RN eeEn are SENET passim
CONSTITUTIONAL PROVISION
United States Constitution, Amendment VI ...............-. passim
Ble Malate reaver
PETITION FOR WRIT OF CERTIORARI
Petitioner Eddie L. Brooks (“Brooks”) respectfully
requests that a writ of certiorari issue to review the decision
of the United States Court of Appeals for the Seventh Circuit
in this case.
OPINIONS BELOW
The October 6, 1999 judgment of the State of Wisconsin
Court of Appeals affirming the trial court’s order denying
Brooks’s postconviction motion for a new trial is unreported.
(Pet. App. 19a-25a.) The Supreme Court of Wisconsin’s
judgment denying Brooks’s petition for discretionary review
without opinion is reported at 607 N.W.2d 290 (Wis. 1999).
(Pet. App. 18a.) The October 28, 2002 decision of the
United States District Court for the Eastern District of
Wisconsin denying Brooks habeas corpus relief is
unreported. (Pet. App. 8a-17a.) The opinion of the United
States Court of Appeals for the Seventh Circuit affirming the
District Court is reported at 380 F.3d 1009 (7th Cir. 2004)
and is reproduced at pages 1a to 7a of the Appendix to this
Petition.
JURISDICTION
The United States Court of Appeals for the Seventh
Circuit entered judgment on August 12, 2004. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1), which authorizes this Court to review a judgment
of the Seventh Circuit denying a petition for writ of habeas
corpus under 28 U.S.C. § 2254. :
CONSTITUTIONAL PROVISION AND STATUTE
INVOLVED
This case involves the Sixth Amendment to the
Constitution of the United States and 28 U.S.C. § 2254,
which are reproduced at pages 45a to 49a of the Appendix.
2
STATEMENT OF THE CASE
Petitioner Eddie L. Brooks was convicted of first-degree
murder and related crimes in a Wisconsin state court. (Pet.
App. la.) Before the trial began, the court allowed Brooks to
dismiss two attorneys appointed to represent him. (Pet. App.
2a.) With the appointment of the third attorney, the court
warned Brooks that were he to dismiss this attorney, he then
would have to represent himself. (/d.)
Brooks was unhappy with the third attorney, but the
court denied this third attorney’s motion to withdraw. (/d.)
As jury voir dire commenced, Brooks again moved to
dismiss his attorney and again the motion was denied. (/d.)
Brooks filed a written pro se motion to dismiss his attorney
after the jury was impaneled and renewed the motion to
represent himself before opening arguments. (/d.)
A colloquy ensued between Brooks and the trial judge to
determine Brooks’s competency to represent himself.
Brooks stated that he had earned a high school equivalency
diploma, and that he understood the charges against him and
the possible punishment. Brooks denied responsibility for
the crime and also articulated a necessity defense. (Pet. App.
39a.) He listed necessity and the right to self-defense as
possible mitigating factors. (Pet. App. 40a.) He understood
the disadvantages of self-representation but felt that “I don’t
know the law that good but I do know enough.” (Pet. App.
28a.) He insisted that he would “do a lot more” than would
his assigned attorney in terms of defending his case. (Pet.
App. 29a.)
At the end of this colloquy, the tral court denied
Brooks’s motion to represent himself at trial, based entirely
on its conclusion that Brooks was not competent to represent
himself. (Pet. App. 44a.) The trial court had previously
adjudged Brooks competent to stand trial and never modified
that finding. (Pet. App. 26a-27a.) The trial court determined
3
that Brooks had no right to represent himself because of the
“different standard for competency to waive one’s right to an
attorney” and the failure of Brooks to articulate “satisfactory
answers” in response to the court’s questioning about his
competency to represent himself.’ (Pet. App. 27a, 43a.)
Brooks failed to satisfy the “different standard” for
competency to represent himself at trial although he satisfied
the standard for competency to stand trial.
Following his conviction, Brooks argued that the trial
court improperly had denied his motion to represent himself
at trial. The Wisconsin Court of Appeals concluded that his
challenge lacked merit: “Neither Brooks’s postconviction
motion nor his appellate brief explains how the trial court
erred in concluding that Brooks, an inarticulate, unschooled,
and disruptive individual, was not competent to represent
himself in this complex trial.” (Pet. App. 24a.) (citing State
v. Klessig, 564 N.W.2d 716, 724 (Wis. 1997)). The
Wisconsin Supreme Court summarily denied Brooks’s
petition for review. (Pet. App. 18a.)
The proceedings below followed. The district court
denied Brooks’s petition for writ of habeas corpus under 28
U.S.C. § 2254. It recognized that a criminal defendant’s
right to represent himself is established by federal law (Pet.
App. 14a.), but accepted the Wisconsin trial court’s
conclusion that Brooks was incompetent to represent himself
at trial. (Pet. App. 15a-16a.)
' “THE COURT: .... And that goes to whether or not defendant has the
basis based upon the record in this case, based upon his lack of
educational experiences, his articulateness, whether or not he really can
form the competency to knowingly waive that constitutional right. For
that reason the Court’s going to deny the defendant’s motion.” (Pet. App.
44a.) (emphasis added).
4
Brooks appealed. He argued that, in accordance with this
Court’s holdings in Godinez v. Moran, 509 U.S. 389 (1993),
and Faretta v. California, 422 U.S. 806 (1975), the
determination by the Wisconsin trial court that he was
competent to stand trial necessarily established his
competence to represent himself at trial. In its decision
affirming the denial of relief, the Seventh Circuit—after
acknowledging that it “may be wrong’”—concluded that the
states are free to establish different standards for competency
to stand trial and for competency to represent oneself at trial.’
(Pet. App. 6a.) The Seventh Circuit held that Wisconsin’s
application of a higher standard of competency for self-
representation than for standing trial was consistent with this
Court’s rulings in Godinez and Faretta. Moreover,
according to the Seventh Circuit, even if Godinez and Faretta
did preclude states from establishing higher competency
standards to represent oneself than to stand trial—a
possibility the Court of Appeals explicitly recognized—the
state court’s-conviction here would still stand because
“Godinez did not clearly establish a rule” as is necessary to
obtain relief by means of a federal habeas corpus petition.
(/d.)
REASONS FOR GRANTING THE WRIT
This Court should grant certiorari to resolve a persistent
conflict among the lower federal and state courts, recognized
by the Seventh Circuit below, concerning whether the Sixth
Amendment precludes a_ state criminal court from
establishing a standard of competency for self-representation
? In analyzing Brooks’s competency to represent himself, the Court of
Appeals noted Brooks’s disruptive behavior during trial and the timing of
Brooks’s request to represent himself but recognized that neither of these
factors was the reason-for the trial court’s ruling denying self-
representation. (Pet. App. 2a-3a.) Rather, the “reason” for the ruling
was Brooks’s-inability to satisfy the elevated Wisconsin standard for self-
representation at trial. (Pet. App. 44a.)
PRCA A AE la RANCH Mined iS Ada Si heb els Ns a atl Ne a Sites
ASAP iI dere te Balch OARS ADL Lc Lint Decals
5
at trial that is higher than the standard of competency that a
criminal defendant must possess to stand trial. Granting
certiorari would also allow this Court to address whether
Godinez and Faretta constitute “clearly established” federal
law and thus allow for the defendant’s collateral attack upon
his criminal conviction under 28 U.S.C. § 2254 (2000),
which sets forth the standards for federal habeas review
under the Antiterrorism and Effective Death Penalty Act of
1996 (the “AEDPA”).
There is an irreconcilable dispute among the federal
courts of appeals and the state courts concerning the
relationship between the standards for competency to stand
trial and for self-representation at trial. With the exception of
the Seventh Circuit below, every federal circuit court of
appeals to consider the question has concluded that, under
Godinez and Faretta, those two standards are necessarily
identical. The Seventh Circuit nevertheless concluded that
these standards may differ, and thus found no constitutional
infirmity in Wisconsin’s regime of requiring a criminal
defendant to demonstrate a higher degree of competence to
exercise his Sixth Amendment right to represent himself than
the degree of competence that, under the Sixth Amendment,
suffices to subject that same defendant to the criminal
process in the first place. The majority of the state supreme
courts that have addressed the issue also interpret Godinez to
require a uniform standard of competency for all the various
categories of Sixth Amendment questions.
Granting this petition would accordingly enable this
Court to resolve this conflict, which goes to the heart of the
American criminal process. This conflict arises frequently
in our criminal courts. The decision below and the minority
position in the states are especially troubling, because they
endorse regimes in which a criminal defendant may be
subjected to one of the most formidable powers of the state
6
without the defendant’s having the fundamental capacity to
control the course of his own defense against the exercise of
that power.
That Brooks seeks this relief in a federal collateral review
of a state criminal conviction also raises a fundamental
question about federal habeas corpus review. The courts are
divided as to what consututes “clearly established” federal
law under 28 U.S.C. § 2254(d)(1). In manifest tension with
the approach evinced by the great majority of federal courts
and state courts, and, more importantly, with this Court’s
prior rulings on the question, the Seventh Circuit held below
that this Court’s decisions in Godinez and Faretta are
insufficient to “clearly establish” federal law on the Sixth
Amendment question that this case squarely presents. This
case accordingly provides an excellent opportunity to
elaborate on the profoundly important question of what it
means for law to be “clearly established.” The resolution of
this question would have a significant effect on many
petitions seeking collateral review of siate criminal
convictions.
Each of the questions presented in this petition is
sufficiently important and unsettled to merit review in its
own right. Considering them together would allow this
Court to resolve one or both of these critical questions, and
further would allow the Court to clarify in more detail the
circumstances under which it is appropriate to invoke the
writ of habeas corpus under the AEDPA.
Rd alin ie he WA ie
I. THIS COURT SHOULD DETERMINE WHETHER
THE SIXTH AMENDMENT STANDARD
ARTICULATED IN GODINEZ AND FARETTA
PERMITS A STATE CRIMINAL COURT TO
REQUIRE A DEFENDANT TO DEMONSTRATE A
HIGHER DEGREE OF COMPETENCY TO
REPRESENT HIMSELF THAN TO STAND TRIAL,
A QUESTION ON WHICH THE OPINION BELOW
CONFLICTS WITH THE VIEWS OF THE SIX
OTHER FEDERAL COURTS OF APPEALS AND A
MAJORITY OF STATE HIGH COURTS THAT
HAVE ADDRESSED THE QUESTION.
The fundamental issue in this case is whether Godinez
and Faretta prescribe that state-established standards for
competency to stand tnal and competency to represent
oneself must be the same. All federal circuit courts of
appeals (other than the Seventh Circuit) that have addressed
the question and most state high courts have determined that,
under this Court’s rulings in Godinez and Faretta, a state is
prohibited from establishing a standard of competency to
represent oneself at trial that is more stringent than the
standard of competency to stand trial in the first instance.
In addition to the Seventh Circuit, six other federal courts
of appeals have addressed the question. They all view
Godinez as holding that competency to stand trial by itself
suffices to establish competency to waive counsel.
Consequently, a waiver of the right to counsel by a criminal
defendant who is competent to stand trial is effective per se,
so long as the waiver of the right is knowing and voluntary.
See United States v. Ellerbe, 372 F.3d 462, 466 (D.C. Cir.
2004) (“The Supreme Court has expressly held, however,
that a defendant who is competent to stand tnal is also
competent to waive his right to assistance of counsel—all
8
that is necessary is that he do so intelligently and
voluntarily.”); Shafer v. Bowersox, 329 F.3d 637, 650 (8th
Cir. 2003) (“Although there is no distinction between the
competency required to stand trial and the competency to
waive constitutional rights, the Court made clear in Godinez
that a finding that a defendant is competent does not mean
that a defendant has made a knowing and voluntary
waiver.”); United States v. Peppers, 302 F.3d 120, 131 n.9
(3d Cir. 2002) (“[T]he standard for competency to stand trial
is the same as the standard to plead guilty or to waive
counsel, except that a person seeking to waive a
constitutional right must also demonstrate that the waiver is
knowing and voluntary.”); United States v. Frazier-El, 204
F.3d 553, 559 (4th Cir. 2000) (“The Supreme Court has made
clear that the standard of competence for waiving counsel is
identical to the standard of competence for standing trial.”’);
United States v. Hernandez, 203 F.3d 614, 620 n.8 (9th Cir.
2000) (“{[T]he Supreme Court held that a defendant’s
competence to waive the right to counsel is measured by the
same standard under which competence to stand trial is
evaluated.”); United States v. Boigegrain, 155 F.3d 1181,
1186 (10th Cir. 1998) (“In Godinez, the Court held that the
degree of competence necessary to waive the right to counsel
is identical to the degree of competence necessary to stand
trial.”).
In contrast, albeit with the caveat that it “may be wrong,”
the Seventh Circuit held below that a state is free to establish
a standard of competency to represent oneself at trial that is
more stringent than the standard of competency to stand trial.
(Pet. App. 6a.) The Seventh Circuit acknowledged the
Godinez rationale that there is no reason to believe “‘that the
decision to waive counsel requires an appreciably higher
level of mental functioning than the decision to waive other
constitutional rights. . . . [A] criminal defendant’s ability to
represent himself has no bearing upon his competence to
9
choose self-representation.”” (Pet. App. 4a.) (quoting
Godinez, 509 U.S. at 399-400). Faced with this clearly
expressed holding, the Seventh Circuit attempted to
legitimate regimes that employ inconsistent standards by
invoking the difference between “mental functioning” and
the “information” needed to make an effective waiver. (Pet.
App. 4a.) The Seventh Circuit thus conflated the standard of
competency necessary to stand trial and to represent oneself
at trial with the separate question of whether a defendant has
made an effective waiver of counsel in a given situation. But
waiver was not at issue in the state proceedings, as the state
courts and the Seventh Circuit below _ explicitly
acknowledged. (Pet. App. 3a.) Brooks was denied the right
to represent himself solely because the same court that found
him competent to be put on trial also found him incompetent
to represent himself at that trial.
This Court has been at pains to distinguish the question
of competence from the question of effective waiver.
Godinez explicitly adopted a “two-part inquiry:”
In addition to determining that a defendant who seeks to
plead guilty or waive counsel is competent, a trial court
must satisfy itself that the waiver of his constitutional
rights is knowing and voluntary. In this sense there is a
‘heightened’ standard for pleading guilty and for waiving
the right to counsel, but it is not a heightened standard of
competence.
509 U.S. at 400-01 (citations omitted) (first emphasis added).
Godinez thus recognized that, in terms of competence, the
defendant’s capacity to proceed pro se requires nothing more
than confirming his capacity to stand trial. Nevertheless, the
Seventh Circuit below pronounced that a waiver of counsel
would be “senseless” if a defendant knew he was
incompetent to defend himself. (Pet. App. 3a.) The Seventh
Circuit’s statement—that “[i]t is one thing for a defendant to
10
have sufficient mentation to be able to follow the trial
proceedings with the aid of a lawyer, and another to be able
to represent himself’ (id.)}—contradicts Godinez, which
recognized: “Nor do we think that a defendant who waives
his right to the assistance of counsel must be more competent
than a defendant who does not,” 509 US. at 399.
The failure to apprehend or acquiesce in the basic
distinction between the questions of competence vel non and
the effectiveness of a defendant’s waiver of the right to
counsel caused the Seventh Circuit, contrary to Godinez and
Faretta (and in direct conflict with the other six federal
courts of appeals that have addressed the question) to uphold
the Wisconsin state court’s utilization of a higher standard
for competency to waive counsel than for competency to
stand trial.
The question presented in this petition further calls for
this Court’s resolution because there is also significant
conflict and disagreement among the state courts as to their
own powers to fashion different standards of competency in.
addressing questions of capacity to stand trial and capacity
for self-representation. The Wisconsin Supreme Court has
explicitly held that Godinez permits determinations of
competency to represent oneself to take place under a higher.
standard than determinations of competency to stand trial.
Klessig, 564 N.W.2d at 724. The Klessig court grounded this
reasoning in the Godinez proviso allowing states to adopt
competency standards more elaborate than this Court set
forth in Dusky v. United States, 362 U.S. 402 (1960) (per
curiam).? Two other state supreme courts have adopted this
> In Dusky, the Court established that the standard for competence to
stand trial is whether the defendant has “sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding” and has “a rational as well as factual understanding of the
proceedings against him.” 362 U.S at 402.
Scab Nocatee a ek a a MN
11
approach. The Supreme Court of Massachusetts suggested
that a finding “that a defendant is competent to act as his own
lawyer (with standby counsel) may require a greater showing
than that the defendant is competent to stand trial.”
Commonwealth yv. Simpson, 704 N.E.2d 1131, 1135 n.5
(Mass. 1999). The Illinois Supreme Court required
something more than competency to stand trial from a
defendant who had been found competent to stand trial and
had waived his right to counsel in People v. Lego, 660
N.E.2d 971, 978-80 (Ill. 1995), when the court reversed a
- conviction and remanded for a new trial. The Lego court
couched this holding in terms of the defendant’s mental
illness affecting adversely his capability to make a knowing
and intelligent waiver of counsel. Jd. at 979.
These three state courts depart from the views, shared by
most other state courts, that a state may establish a higher
standard of competency only if it applies that higher standard
consistently with respect to all constitutional mghts that
depend on a determination of competency. The great
majority of state supreme courts have reached the conclusion
that the standards of competency to stand trial and to
represent oneself at trial must be the same. See, e.g., People
v. Welch, 976 P.2d 754, 777 (Cal. 1999) (“[T]he [C]ourt
defined competence to plead guilty or to waive the assistance
of counsel, equating it with competence to stand trial.”);
State v. Wolff, 678 A.2d 1369, 1386 (Conn. 1996) (“[A]ny
defendant who is competent to stand trial as a matter of state
law is competent to waive the night to counsel.”); Lamar v.
State, 598 S.E.2d 488, 491 (Ga. 2004) (“The standard of
mental competency to stand trial is the same as the standard
of mental competency to waive the right to counsel.”); State
v. Cooley, 608 N.W.2d 9, 17 (Iowa 2000) (“[A prior]
decision created some question as to whether the standard for
competence to stand trial was the same as that required to
waive the right to the assistance of counsel. The Court
12
settled this controversy in Godinez where it was held the two
standards were indeed the same.”’); State v. Camacho, 561
N.W.2d 160, 171 (Minn. 1997) (“In Godinez, the Court held
that the legal standard for competence to waive counsel is the
same as the legal standard for competence to stand trial);
Johnson v. State, 17 P.3d 1008, 1015 n.19 (Nev. 2001)
(“[Tjhe standards of competency to stand trial and waive
counsel are identical.”); State v. Jordan, 804 N.E.2d 1, 8
(Ohio), cert. dismissed, 73 U.S.L.W. 3273 (U.S. 2004),
(“[T]he standard of competence to waive the right to counsel
is the same as the standard for competency to stand trial.”);
Commonwealth v. Jermyn, 709 A.2d 849, 861 (Pa. 1998)
(“The United States Supreme Court, in its 1993 decision in
Godinez, held that the competency standard for pleading
guilty or waiving the right to counsel is not higher than the
competency standard for standing trial.”); Hauck v. State, 36
P.3d 597, 602 (Wyo. 2001) (“The United States Supreme
Court has held that the degree of competence necessary for a
defendant to waive counsel is the same degree of competence
required for him to stand trial.”).
Indeed, this issue has generated controversy even among
justices of a single state high court. Concurring in Klessig,
Wisconsin Supreme Court Justice Abrahamson agreed with
the majority of states that require the standards of
competency to stand trial and to represent oneself be
identical. While joining the mandate of the majority, Justice
Abrahamson wrote separately to underscore the difficulties
inherent in failing to follow the rule of law established in
Godinez and Faretta. In her view, the majority failed to
explain how adopting a more stringent standard of
competency for self-representation could be consistent with
Faretta. Klessig, 564 N.W.2d at 726-27 (Abrahamson, J.,
concurring); see also Faretta, 422 US. at 817
(acknowledging universal conviction that “forcing a lawyer
upon an unwilling defendant is contrary to his basic right to
een Ne 6
13
defend himself if he truly wants to do so.”). Thus, Justice
Abrahamson concluded that states may adopt a standard
more elaborate than Dusky “only if that standard is applied
equally to competency to stand trial and competency for self-
representation.” Klessig, 564 N.W.2d at 726 (Abrahamson,
J., concurring).
The instant case now presents the opportunity to bring in
line with clearly established federal law those state and
federal courts that are in conflict with Godinez and Faretta.
This Court should also grant certiorari to resolve the
confusion that exists in those states that have not adopted a
standard for competency to represent oneself higher than the
standard for competency to stand trial, but have indicated that
they could do so in the future. See, e.g., Gregg v. State, 833
A.2d 1040, 1060 (Md. 2003) (claiming that Supreme Court
has found states are free to adopt higher standard for
competency to waive counsel); State v. Arguelles, 63 P.3d
731, 751 n.17 (Utah), cert. dismissed, 124 S. Ct. 926 (2003),
(noting that states are “free to adopt competency standards
that are more elaborate”).
The issue presented here is important not only because it
is the subject of an entrenched conflict among lower courts,
but also because the right to self-representation is
fundamental to a fair trial; and, the fairness of the trial
process underlies the proper functioning of the criminal
justice system. See Rose v. Clark, 478 U.S. 570, 577-78
(1986). This Court has held that a criminal defendant has an
independent constitutional right to self-representation.
Faretta, 422 U.S. at 807. The Sixth Amendment implies the
right to represent oneself, which exists “to affirm the
accused’s individual dignity and autonomy.” McKaskle v.
Wiggins, 465 U.S. 168, 178 (1984). Both the right to counsel
and the right to represent oneself are essential to a fair trial.
See Strickland v. Washington, 466 U.S. 668, 685 (1984) (“An
14
accused is entitled to be assisted by an attomey, whether
retained or appointed, who plays the role necessary to ensure
that the trial is fair.”). State rules of criminal procedure may
not differ from federal standards if they “‘offend[] some
principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” Medina v.
California, 505 U.S. 437, 446 (1992) (quoting Patterson vy.
New York, 432 U.S. 197, 202 (1977)). The right to elect self-
representation at trial is such a right. See Faretta. 422 U.S. at
812 (“[T]he right of self-representation has been protected by
Statute since the beginnings of our Nation.”). The denial of
the right to self-representation constitutes a structural defect
and is not harmless error. McKaskle, 465 U.S. at 177 n.8.4
For these reasons, Brooks respectfully asks this Court to
determine whether the Seventh Circuit erred in allowing the
State of Wisconsin to require him to satisfy a higher standard
of competency to represent himself than to stand trial.
il. THIS COURT SHOULD DETERMINE WHETHER
THE STANDARDS ARTICULATED IN GODINEZ
AND FARETTA CONSTITUTE “CLEARLY
ESTABLISHED FEDERAL LAW” ENTITLING A
CONVICTED CRIMINAL DEFENDANT TO
OBTAIN FEDERAL COLLATERAL RELIEF
UNDER 28 U.S.C. § 2254.
The Seventh Circuit also held below that Godinez did not
“clearly establish” a rule of law, and therefore, even if it
* The improvident denial of the right to represent oneself at trial may
affect adversely other aspects of the criminal process as well. For
example, the Ninth Circuit has pointed out that an erroneous denial of the
right to self-representation entails that a subsequent guilty plea must be
considered involuntary as a matter of law because it forces a defendant to
choose between pleading guilty and submitting to a trial that would be
structurally unconstitutional. United States v. Kaczynski, 239 F.3d 1108,
1116 (9th Cir. 2001).
15
were incorrect in its interpretation of Godinez, Brooks would
still not be entitled to habeas corpus relief. In sO errs
the Seventh Circuit misapplied the provision in 28 U.S.C.
§ 2254(d)(1) that an application for a writ of habeas apne
may not be granted unless the adjudication of the claim at e
state court level “resulted in a decision that was _— .
or involved an unreasonable . application of, clear 7
established Federal law, as determined by the Supreme Cou
of the United States.”
urt has already begun the critical task of
we the meaning of the operative term ‘clearly
established Federal law” in the AEDPA. In gerne
Taylor, 529 U.S. 362, 412 (2000), the Court held uy “
statutory phrase refers to the holdings, as opposed 7 :
dicta, of this Court’s decisions as of the time of the re ar
state-court decision.” This case provides an hegre <4
suitable occasion for clarifying when federal law 1s “clearly
established.”
It is the holding of Godinez, not its dicta, that —
the same standard for competency to stand trial oar
competency to represent oneself. 509 U.S. at 3 si
Many federal circuit courts of appeals have nig ae
Godinez as holding that those standards are identical.
: nth Circuit wrote below: .
ae be wrong, but if so Brooks still must lose. Remember
that a state court’s decision can be ‘struck down in yr so
habeas corpus proceeding only if it is contrary to poco
established” federal law as declared by the Supreme “a -
Godinez did not clearly establish a rule, which is the mu . “a
which Brooks contends, that a defendant found pert :
stand trial is automatically entitled to represent himself n :
matter how deficient his understanding of the consequences 0
going to trial without a lawyer.
(Pet. App. 6a-7a.) (emphasis added).
ae
16
Ellerbe, 372 F.3d at 466; Hernandez, 203 F.3d at 620 n.8;
Boigegrain, 155 F.3d at 1186. Yet, disagreements over what
constitutes a holding and what constitutes dicta pervade
opinions at all levels, and include lower court judges
attempting to abide the holding in a controlling case as well
as judges in the same circuit determining “holding versus
dicta” in their own precedent. Jn Re Fowlkes, 326 F.3d 542,
546 (4th Cir. 2003) (disagreeing with concurrence
characterization of prior Fourth Circuit opinion as dicta and
acknowledging underlying problem of ignoring AEDPA’s
mandate not to proceed to substantive merits of habeas
petition unless certificate of appealability issues); Chadwick
v. Janecka, 312 F.3d 597, 613 (3d Cir. 2002) (indicating
district court incorrectly relied on dicta from Third Circuit
opinion where AEDPA “‘s clear that the appropriate law to
apply is Supreme Court precedent,” though lower federal
court opinions may be helpful amplifications of such
precedent); Aron v. United States, 291 F.3d 798, 713 n.4
(11th Cir. 2002) (disagreeing with view of concurring
opinion that holding that petitioner’s failure to exercise due
diligence prior to AEDPA enactment cannot support finding
that petition does not satisfy timeliness requirement of 28
U.S.C. § 2255(4) was actually dicta because the “fact that
either error would be sufficient to warrant reversal does not
mean that future panels are free to treat one of these two
findings as dicta.”’).
Judge Kozinski of the Ninth Circuit has emphasized the
risk inherent in subsequent panels unilaterally characterizing
as “dicta” what prior panels considered to be “holdings:”
Whether a court ought to speak to an issue that is
not strictly necessary to the outcome of the case is a
legitimate topic of debate during the process of
collegial deliberation. ... But it is quite a different
matter to suggest . . . that the work product of a panel
17
of this court can simply be disregarded because a later
panel finds a way to call ‘+ “dicta” or “advisory” or
some similar invective.
Spears v. Stewart, 283 F.3d 992, 1005-06 (9th Cir. 2002)
(statement of Kozinski, J., concerning denial of petitions for
rehearing en banc). The dissent in Spears considered portions
of the prior opinion to be dicta because “whether or not the
Arizona scheme satisfied the requirements of Chapter 154 [of
the AEDPA] was entirely irrelevant to the outcome of [the]
case,” and because the Arizona procedure that the panel
decision validated had been repealed by the time of
consideration. Jd. at 999-1000 (Reinhardt, J., dissenting from
denial of petitions for rehearing en banc).
These concerns apply to a categorically higher degree to
the opinions of this Court. By granting certiorari here, the
Court could clarify these issues, which continue to challenge
many lower court judges.°
Deciding what constitutes “clearly established” federal
law is a threshold question. Lockyer v. Andrade, 538 US.
63, 71 (2003). There is a disconcerting diversity of
approaches to this threshold question. For example, the
lower courts disagree as to the number of Supreme Court
6 The decision below has already threatened to engender significant
confusion among the courts bound to apply it. For example, the cour *1
Gomez v. Berge, No. 04-C-17-C, 2004 U.S. Dist. LEXIS 16360, at *43-
*44 (W.D. Wis. Aug. 18, 2004), adopted by unpublished order (W.D.
Wis. Oct. 22, 2004), noted that the Seventh Circuit in Brooks failed to —
“cite to any facts found by the state trial court that supported its
conclusion that Brooks did not understand the dangers of self-
representation,” but rather mentioned Brooks’s obstreperous behavior as
an indication of his lack of competence to represent himself.
Significantly, the Gomez court found the opinion in Brooks “difficult to
reconcile with Faretta and Godinez,” but could not analyze the case as it
would have done earlier because the decision below already had become
“the law of this circuit.” 2004 U.S. Dis’. LEXIS 16360, at *43-*46.
fen rn ea nae en ere aan sae ee
18
cases necessary to “clearly establish” federal law. Several
courts have looked to only one case in deciding that the
federal law was clearly established. See, e.g., Kandies v.
Polk, 385 F.3d 457, 468-69 (4th Cir. 2004) (holding that
Strickland clearly established federal law rule as to what
constitutes ineffective assistance of counsel); Selian v.
Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001) (holding that
Strickland clearly established the prejudice and performance
test for ineffective assistance of counsel claim); Moxley v.
Bennett, 291 F. Supp. 2d 212, 226-27 (W.D.N.Y. 2003)
(holding that Batson v. Kentucky, 476 U.S. 79 (1986), clearly
established federal law as to racial discrimination in jury
selection procedures); McGhee v. Jackson, No. 01-CV-
73860-DT, 2002 U.S. Dist. LEXIS 21930, at *4-*12 (E.D.
Mich. Oct. 10, 2002) (holding that Batson clearly established
federal law as to racial discrimination in jury selection
procedures); Dible v. Ault, No. C99-4010-MWB, 2000 U.S.
Dist. LEXIS 21404, at *58-*62 (N.D. Iowa Oct. 20, 2000),
adopted by 2001 U.S. Dist. LEXIS 10541 (N.D. Iowa July
12, 2001), (holding that Strickland clearly established federal
law as to ineffective assistance of counsel claims).
In contrast, the Seventh Circuit held that, here, two
Supreme Court decisions, namely Godinez and Faretta, did
not “clearly establish” federal law. The Seventh Circuit did
not explain the rationale behind this holding, but in so ruling,
the Seventh Circuit denied relief to the petitioner. (Pet. App.
6a.) Guidance, therefore, is needed from this Court so that
all lower courts abide this Court’s decisions in Godinez and
Faretta, which “clearly establish” federal law under
applicable standards.
Williams explained that “[w]ith one caveat, whatever
would qualify as an old rule under our Teague [v. Lane, 489
U.S. 288, 301 (1989)] jurisprudence will constitute ‘clearly
established Federal law, as determined by the Supreme Court
19
of the United States’ under § 2254(d)(1).” 529 U.S. at 412.
The caveat is that only Supreme Court jurisprudence may
clearly establish federal law. Teague held that habeas relief
may not issue where the defendant’s constitutional claim is
based on a “new rule.” 489 U.S. at 310. A “new rule” is one
which is not mandated by precedent at the time that the
defendant’s conviction became final on direct review. Id. at
301.
There is no “new rule” in this case. Here, both the
Wisconsin Court of Appeals decision (1999) and the
Wisconsin Supreme Court’s denial of review (1999) were
issued well after Godinez (1993). Because the difference
between a “new rule” and an “old rule” is the timing in
relation to the finality of the defendant’s conviction, the
standard set forth in Godinez and Faretta was a clearly
established “old rule” at the time of Brooks’s conviction.
“[A]Jn old rule under our Teague jurisprudence will constitute
‘clearly established Federal law.” Williams, 529 U.S. at
412. That standard therefore entitled Brooks to a writ of |
habeas corpus in the proceedings below.
This Court should review the decision below to correct
the Seventh Circuit and prevent future similar failures by
district courts and circuit courts of appeals to grant habeas
corpus relief in cases where state courts have failed to follow
rules “clearly established” by this Court’s constitutional
jurisprudence.
\
20
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
JEROLD S. SOLOVY*
ROBERT L. GRAHAM
JACOB I. CORRE
ALISON A. DIETERICHS
JENNER & BLOCK LLP
One IBM Plaza
Chicago, Illinois 60611
(312) 222-9350
November 10, 2004 * Counsel of Record
APPENDICES
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Appendix A
United States Court of Appeals,
Seventh Circuit.
EDDIE L. BROOKS, Petitioner-Appellant,
v.
GARY R. McCAUGHTRY, Respondent-Appellee.
No. 02-4324
Argued April 5, 2004
Decided August 12, 2004
OPINION
Before BAUER, POSNER, and DIANE P. Woop, Circuit
Judges.
POSNER, Circuit Judge.
Eddie Brooks was convicted in a Wisconsin state court of
first-degree murder of a policeman, and related crimes, and
was sentenced to life in prison plus 109 years. After
exhausting his state remedies in State v. Brooks, 607 N.W.2d
290 (Wis. 1999), he sought federal habeas corpus, lost in the
district court, and appeals, contending that the Wisconsin
trial court deprived him of his federal constitutional right to
represent himself. Faretta v. California, 422 U.S. 806
(1975). (His other contentions do not merit discussion.) To
prevail, he must show that the state decision of which he
complains “was contrary to, or involved an unreasonable
2a
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1).
Before his trial began, Brooks was permitted to fire two
lawyers who had been appointed in succession to represent
him. A third was appointed. The judge warmed Brooks that if
he fired number three, he would have to represent himself.
When the case was called for trial, Brooks moved to dismiss
the lawyer (whose motion to withdraw at Brooks’s request
had been denied) and when the judge denied the motion
Brooks punched the lawyer in the face. Two days later, after
jury selection, Brooks moved that he be allowed to represent
himself. After quizzing him about his_ educational
background and his knowledge of the law, the judge denied
the motion.
The judge conceivably could have ruled that Brooks’s
motion to represent himself was untimely. Hamiel v. State,
285 N.W.2d 639, 648-49 (Wis. 1979); United States v.
Kosmel, 272 F.3d 501, 505-06 (7th Cir. 2001); Cain v.
Peters, 972 F.2d 748 (7th Cir. 1992). “A person accused of a
crime has an absolute night, under the Sixth Amendment, to
represent himself only if he asserts that right before trial.”
United States v. Washington, 353 F.3d 42, 46 (D.C. Cir.
2004). Here, the trial had begun, Brooks had already run
through three lawyers—suggesting that he might have
intended from the get-go to represent himself—and the
evidence against him was overwhelming, suggesting that he
might be seeking by his latest change of heart merely to
disrupt the trial. Yet having told Brooks that if he fired
lawyer number three he would have to represent himself, the
judge might well have been understood to be giving Brooks
until then to decide to represent himself, consistent with
cases such as United States v. Oreye, 263 F.3d 669, 670-71
(7th Cir. 2001), and United States v. Irorere, 228 F.3d 816,
3a
826-28 (7th Cir. 2000). Those cases hold that a defendant
who is warned that if he fires his lawyer he’ll have to
represent himself will, if he does fire the lawyer, be deemed
by doing so to have chosen to represent himself. However all
this may be, the judge based his denial of Brooks’s motion
not on timeliness but on competency, and Brooks argues that
the ruling deprived him of the right recognized in the Faretta
case.
He contends that anyone competent to stand trial, as he
was, is ipso facto competent to waive counsel. Whether this
contention is sound depends on the exact meaning of
“competent.” It is one thing for a defendant to have
sufficient mentation to be able to follow the trial proceedings
with the aid of a lawyer, and another to be able to represent
himself; and while Brooks clearly had the former, he seems
equally clearly to have lacked the latter, if we may judge
from his wild behavior and incomprehensible outbursts
during the trial. And if he was incompetent to conduct his
own defense, this is evidence that his decision to waive
counsel was not “knowing and intelligent,” as all waivers
must be in order to be legally effective. E.g., Jowa v. Tovar,
124 S. Ct. 1379, 1387 (2004), Faretta v. California, supra,
422 U.S. at 835; Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938); United States v. Irorere, supra, 228 F.3d at 828. A
waiver of counsel would make no sense from the defendant’s
standpoint if he knew he was incompetent to defend himself
(unless his intent was to disrupt the trial—in which event it
would not be an exercise of the right recognized by Faretta);
and so senseless a waiver could only with difficulty be
regarded as knowing and intelligent. That appears to be this
case.
But Brooks argues that in Godinez v. Moran, 509 U.S.
389 (1993), the Supreme Court held that the standard for
competence to stand trial a:d the standard for competence to
4a
waive counsel are identical, and if his interpretation (whic
some courts have accepted, e.g., People v. Welch, 976 P.2:
754, 774 (Cal. 1999); State v. Day, 661 A.2d 539, 548 (Conn
1995); State v. Camacho, 561 N.W.2d 160, 172 (Minn
1997)) is correct, it might seem to follow that we must orde
a new tnal for Brooks. But we doubt both the premise an
the conclusion. The Supreme Court in Godinez did reject th
idea “that the decision to waive counsel requires ai
appreciably higher level of mental functioning than th
decision to waive other constitutional nghts .... [A
criminal defendant’s ability to represent himself has n
bearing upon his competence to choose self-representation.’
509 U.S. at 399-400 (emphasis in original; footnote omitted)
But there is a difference between mental functioning, whicl
is the ability to process information, and the informatiot
itself; more information may be required for an effective
waiver of the right to counsel than for being able to follov
the goings-on at one’s trial. And so the Court went on to sa
that the judge must satisfy himself that the defendant no
only has the requisite mental competence to choose whethe:
to represent himself but also knows enough about the
consequences of his choice to make it “intelligent anc
voluntary.” Jd. at 401-02. As we have explained, an effective
“waiver of the right to the assistance of counsel at trial, the
stage of a criminal prosecution most difficult for a laypersor
to navigate, may require an oral inquiry to ensure that the
defendant chooses with knowledge of his entitlements anc
his eyes open to the dangers of self-representation.” Speights
v. Frank, 361 F.3d 962, 964 (7th Cir. 2004) (emphasis in
original).
The Court further said in Godinez that “states are free to
adopt competency standards that are more elaborate than” the
standard laid down for competence to stand trial in Dusky v.
United States, 362 U.S. 402 (1960) (per curiam), but “the
Due Process Clause does not impose these additional
Sa
requirements.” 509 U.S. at 402. The Dusky (due process)
standard of competence to stand trial requires that the
defendant have “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding”
and “a rational as well as factual understanding of the
proceedings against him.” 362 U.S. at 402. Note the
assumption that the defendant has a lawyer—that he is not
trying to represent himself. Self-representation was not the
issue in Dusky.
Even more important is the distinction between what due
process requires and what it permits. In the decision the
Supreme Court reversed in Godinez, the Ninth Circuit had
imposed a federal minimum standard of competence for self-
representation in state prosecutions that was higher than the
Dusky standard, and it was this that the Court was
disapproving. The reason for disapproving it, we conjecture,
was that it might enforce against the states a concept of
ineffective self-representation. Suppose the Ninth Circuit’s
approach (which required that the defendant be capable of a
“reasoned choice” to represent himself) required a defendant
to be sufficiently skilled and knowledgeable to be able to do
a really creditable job of self-representation. Then if a state
judge allowed a defendant to represent himself and the
defendant screwed up, the state would have to give him a
second bite at the apple—a second trial, this time with
assistance of counsel whether he wanted it or not. Cain v.
Peters, supra, 972 F.2d at 750; Alan R. Felthous, “The Right
to Represent Oneself Incompetently: Competency to Waive
Counsel and Conduct One's Own Defense Before and After
Godinez,” 18 Mental & Physical Disability L. Rep. 105, 109
(1994). No federal policy, whether found in the due process
clause of the Fourteenth Amendment or anywhere else, is
offended by a state’s adopting a rule that may allow some of
its criminal defendants to whipsaw it.
6a
And even if the standards for competence to stand trial
and for competence to waive the right of counsel are the
same, the existence of an effective waiver need not be
automatically deduced from a finding that the defendant is
competent to stand trial. This would be obvious if having
determined that the defendant was competent to stand trial
the judge had asked the defendant whether he wanted a
lawyer but had not explained the consequences of going to
trial without one. A judge who, having explained the
consequences, finds that the defendant doesn’t understand
them is entitled to conclude that although competent to stand
trial, the defendant has not made an effective waiver of his
right to counsel and therefore may not represent himself. This
result is consistent with Godinez.
Wisconsin, as this case illustrates, has set a higher
standard for waivers of the Faretta right than for competence
to stand trial. See also Commonwealth v. Simpson, 704
N.E.2d 1131, 1135 n. 5 (Mass. 1999). The Supreme Court of
Wisconsin held in State v. Klessig, 564 N.W.2d 716, 722-24
(Wis. 1997), tiiat the state’s approach, adopted in Pickens v.
State, 292 N.W.2d 601, 609-11 (Wis. 1980), had survived
Godinez, albeit with a modification irrelevant to this case.
Because being competent to stand trial and having waived
the right to counsel do not require the same information, and
because the former competence does not imply an effective
waiver in all cases, we do not think that Wisconsin’s
approach violates the rule of Godinez.
We may be wrong, but if so Brooks still must lose.
Remember that a state court’s decision can be struck down in
a federal habeas corpus proceeding only if it is contrary to
“clearly established” federal law as declared by the Supreme
Court. Godinez did not clearly establish a rule, which is the
rule for which Brooks contends, that a defendant found
competent to stand trial is automatically entitied to represent
7a
himself no matter how deficient his understanding of the
consequences of going to trial without a lawyer.
AFFIRMED.
8a
Appendix B
United States District Court,
Eastern District of Wisconsin.
EDDIE LEE BROOKS, Petitioner,
v.
GARY R. McCAUGHTRY, Respondent.
Case No. 00-C-1481
October 28, 2002
GRIESBACH, District Judge.
DECISION AND ORDER
Eddie Lee Brooks, an inmate at Waupun Correctional
Institute, has petitioned this court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Brooks 1s presently serving a
sentence of life plus 109 years for the 1990 first degree
intentional homicide of Sergeant Michael Tourmo of the
Milwaukee Police Department, two counts of attempted first
degree intentional homicide, and one count each of first
degree recklessly endangering safety, burglary, and felon in
possession of a firearm, all with various penalty enhancers.
In his pro se petition, Brooks claims he is entitled to habeas
relief because he was denied his constitutional rights to
effective assistance of counsel and to self-representation. He
also claims that he was denied his right to present a defense,
that the trial court erroneously ruled that he gave a confession
and that the prosecutor engaged in misconduct. For the
reasons that follow, I find no merit in any of Brooks’ claims,
deny his petition and order the case dismissed.
I. BACKGROUND
On the morning of November 18, 1990, officers of the
Milwaukee Police Department were dispatched to a burglary
9a
in process at the North Avenue Smoke Shop on the corner of
26th Street and North Avenue. (Answer, Ex. H, Part 117 at
92-94.) As they arrived, police saw two individuals fleeing
the scene and gave chase. (/d. at 96.) Sergeant Tourmo was
seen pursuing one of the individuals, who was later identified
as Brooks, down an alley in his squad car. (/d. at 103-05.)
As other officers arrived, they positioned their squads at
various locations around the block, exited their squads and
began looking for the fleeing subjects on foot. (/d. at 115-25,
137.) Both subjects were ultimately apprehended, but not
before Brooks had gotten off several rounds at several of the
pursuing officers. He tossed his gun after emptying it and
surrendered as police were closing in. The other subject,
Lavelle Chambers, was found hiding under a porch nearby.
(Id. at 34-35:) When the officers were unable to raise
Sergeant Tourmo on the radio, they retraced their steps and
found him lying in a pool of blood with a bullet hole in his
head. (/d. at 143-45.) Later that day, Brooks confessed to
shooting Sergeant Tourmo as he walked by a porch on which
he was hiding, and ballistic tests subsequently performed at
the Wisconsin Crime Laboratory confirmed that the bullet
retrieved from Tourmo’s body had been fired from the gun
Brooks had tossed just before he was apprehended. (/d., Part
125 at 24-25, 80-81.)
A Milwaukee County jury found Brooks guilty of the
homicide and other offenses noted above following a week-
long trial, and he was sentenced on December 5, 1991. After
two earlier appeals were dismissed on procedural grounds,
the Wisconsin Court of Appeals by order dated June 11,
1997, allowed Brooks to file an untimely motion for
postconviction relief pursuant to Wis. Stat. § 809.30. That
motion, in which Brooks alleged that he was denied effective
assistance of counsel; that the trial court erred in refusing to
allow him to be represented by “jailhouse lawyers” or to
proceed pro se during trial; and that his convictions resulted
10a
from conspiracy, perjury and prosecutorial misconduct, was
denied without hearing by the trial court. The trial court’s
decision was summarily affirmed by the Wisconsin Court of
Appeals in an opinion and order dated October 6, 1999, and
the Wisconsin Supreme Court denied Brooks’ petition for
discretionary review on November 7, 1999. On November
20, 2000, Brooks filed the petition for a writ of habeas corpus
that is presently before me.
II. DISCUSSION
In order to prevail in a federal action for a writ of habeas
corpus, the petitioner must prove that the state court’s
decision “was contrary to, or involved an unreasonable
application of clearly established Federal law, as determined
by the Supreme Court of the United States” or was based on
“an unreasonable determination of the facts in the light of the
evidence presented.” 28 U.S.C. § 2254(d). A state court’s
decision is contrary to clearly established federal law, as
determined by the Supreme Court of the United States, “if
the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state court’s decision
involves an unreasonable application of established federal
law “if the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Jd. Moreover, it is not enough for a federal
court reviewing a state court conviction under § 2254 to
conclude that the state court’s application of established
federal law is simply incorrect or erroneous. For such
application to warrant relief under § 2254(d)(1), it must be
objectively unreasonable. Jd. at 409-12.
lla
A. Ineffective Assistance of Counsel
In his petition for habeas corpus, Brooks first claims that
he was denied his Sixth Amendment right to the effective
assistance of counsel. He alleges that his trial counsel,
Attorney Michael Barth, (1) failed to challenge the admission
of his confession; (2) failed to impeach the credibility of the
law enforcement officers that testified to his apprehension
and subsequent confession; (3) refused to investigate the case
and cal! witnesses who could have provided information
suggesting that someone else had done some of the shooting;
and (4) failed to present a defense.
The Sixth Amendment right to the effective assistance of
counsel is clearly established. federal law as determined by
the Supreme Court of the United States. In Strickland v.
Washington, 446 U.S. 668, 686 (1984), the Court noted that
its prior decisions had recognized that the right to counsel
includes the right to the effective assistance of counsel. The
Strickland Court then established a two-part test to determine
whether the right to effective assistance of counsel was
violated:
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as_ the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires showing
that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.
Id. at 687.
12a
In affirming the trial court’s denial of Brooks’ motion for
postconviction relief, the Wisconsin Court of Appeals
expressly cited Strickland and applied its test in evaluating
his claim of ineffective assistance of counsel. Brooks has not
cited any case with materially indistinguishable facts that the
United States Supreme Court has decided differently. Thus,
it cannot be said that the state court decision is contrary to
established federal law on this issue. The questions
presented, then, are whether the state court’s decision
resulted from an unreasonable application of Strickland, or
whether it was based upon an unreasonable determination of
the facts in light of the evidence presented.
Neither the application of Strickland, nor the
determination of facts, was unreasonable. The court of
appeals correctly noted that Brooks’ allegation that his
attorney failed to challenge the admissibility of his
confession is belied by the record. The first of the three
separate attorneys who represented him at the pretrial and
trial stages of the proceedings moved to exclude the
confession on the grounds that it was the fruit of an illegal
arrest, that it was coerced and that it was obtained in
violation of the requirements of Miranda v. Arizona, 384
U.S. 436 (1966). The trial court conducted an extensive
evidentiary hearing on the motion and ordered it denied.
The allegation that his trial attorney, Attorney Barth,
failed to impeach the credibility of police witnesses is
predicated on counsel’s failure to present what Brooks
contends are inconsistencies in the testimony and reports of
various Officers and, as to at least on officer, evidence that he
previously was untruthful in an unrelated matters. The
inconsistencies Brooks claims Attorney Barth failed to
establish relate to such issues as whether he had remained in
the squad car when he was transported back to the scene or
excited the car with the detectives; whether they remained at
13a m
the scene until 7 p.m. or were back at the station by 6:30
p.m.; the precise time his car was towed from the scene; and
the exact time an officer made certain entries in his memo
book. Viewed in the context of the entire trial, the court of
appeals reasonably characterized the alleged inconsistencies
as “the most trivial disagreements over the course of events
during the crime and its investigation.” (Answer, Exhibit B,
at 15.)
The evidence that one of the officers had been untruthful
in an unrelated matter involved one of the two detectives who
had interviewed Brooks after his arrest. The detective
Brooks wanted to impeach, however, was never called as a
witness by the state, and the court of appeals properly
concluded that the evidence of untruthfulness in an unrelated
matter would not have been admissible. Thus, counsel was
not ineffective for failing to offer it.
Brooks’ allegation that his Attorney Barth failed to
investigate the case is also belied by the record. The Court of
Appeals noted, and the record confirms, that Brooks’ first
attorney retained an investigator who independently
interviewed witnesses, viewed the crime scene and took
photographs. This evidence was turned over to Attorney
Barth attorney well in advance of trial along with the state’s
response to the defense’s discovery requests. In addition,
Attorney Barth hired an investigator of his own. More
importantly, Brooks is silent as to what exculpatory evidence
could have been uncovered. In the absence of any showing
that exculpatory evidence was available, an allegation that
counsel’s investigation was inadequate is entitled to no
weight.
Brooks’ conclusory allegation that his trial attorney did
not present a defense likewise lacks support in the record. A
review of the transcript reveals that Attomey Barth
challenged the witnesses called by the state and made as
l4a
strong an argument to the jury as the evidence permitted.
The strength of the defense he could present was limited, as it
is in all cases, by the available evidence. Again, other than a
few minor inconsistencies of the kind to be expected in a
case of this nature, Brooks has pointed to no actual evidence
that his attorney failed place before the jury.
In sum, Brooks has failed to allege any facts which, when
viewed in the context of the record in this case, would
support his claim that the representation provided by his
attorney was constitutionally deficient. I therefore conclude
that the Wisconsin Court of Appeals did not unreasonably
apply the clearly established law of Strickland in rejecting his
claim that his conviction was the result of ineffective
assistance of counsel. I also conclude that its determination
of the facts relating to this claim was not unreasonable in
light of the evidence presented.
B. Rights to Self-Representation
Brooks next claiuns that the trial court violated his
constitutional right to represent himself when, shortly after
trial commenced, he requested that Attorney Barth be
removed so he could conduct his own defense. The right to
represent oneself, like the right to effective assistance of
counsel, is also well established in federal law. The Supreme
Court gave explicit recognition to such a right in Faretta v.
California, 422 U.S. 806 (1975). But this right, like all
rights, is not unlimited. A defendant who seeks to represent
himself must be competent to do so. Godinez v. Moran, 509
U.S. 389 (1993). And Faretta itself recognized that “the trial
judge may terminate self-representation by a defendant who
deliberately engages in_ serious and_ obstructionist
misconduct.” 422 U.S. at 834 n. 46.
15a
The record in this case reflects that Attorney Barth was in
fact the third attorney assigned to the case. The first two had
been fired by Brooks or allowed to withdraw at his request.
As the trial was about to begin, Brooks attempted to fire
Attorney Barth. Convinced that Brooks would find no
attorney any more to his liking and reluctant to further delay
the trial, the court denied Brooks’ request. Brooks responded
first by punching Attorney Barth in the face, and later by
disrupting the jury selection process by claiming Attorney
Barth was not his attorney and stating he would not
participate in “this fraud.” (Answer, Ex. H, Part 112 at 27,
56-57.) As a result of this conduct, the trial judge ordered
Brooks shackled, and a new panel was brought in to begin
the jury selection process again.
The following day, after the jury was impaneled and a
view of the scene completed, Brooks for the first time
advised the trial court of his desire to represent himself. (/d.,
Part 116 at 3.) Based upon its concerns that his request was
simply a ploy to further obstruct the trial and after
considering the complexity of the case, the seriousness of the
charges, and the defendant’s lack of education and inability
to clearly express himself, the trial court denied the motion.
(Id. at 24-26.) Brooks claims that in doing so, the trial court
violated his Sixth Amendment right to self-representation.
In its order affirming the trial court’s denial of his motion
for postconviction relief, the Wisconsin Court of Appeals
rejected this claim, stating, “[nJeither Brooks’ postconviction
motion nor his appellate brief explains how the trial court
erred in concluding that Brooks, an inarticulate, unschooled,
and disruptive individual, was not competent to represent
himself in this complex trial.” (Answer, Ex. B at 7.) From
my review of the record, I am satisfied that the Wisconsin
court’s conclusion constitutes a reasonable application of the
United States Supreme Court’s decision in Faretta.
l6a
Brooks had already shown himself to be unable or
unwilling to behave in a civil manner by punching his
attorney in the face and disrupting the jury selection process
to the point where the trial judge had ordered him shackled,
excused one jury panel and started the selection process over.
Even after these occurrences, at various times throughout the
trial, Brooks disrupted the proceedings with his outbursts,
sometimes laced with obscenities, claiming Attorney Barth
was not his attorney and demanding to be removed from the
courtroom. For at least part of the trial, Brooks was in fact
removed from the courtroom. The culmination of this
behavior occurred when he dropped his pants and “mooned”
the trial judge from a holding cell at his sentencing. As a
whole, the record provides strong support for respondents’s
contention that “Brooks was arguably one of the most
disruptive criminal defendants ever to set foot in a Wisconsin
courtroom. (Br. in Opp’n at 4-5.)
Faced with such behavior, the trial judge did not err in
denying Brooks’ request that he be allowed to represent
himself. His behavior, both before and after the request was
made, demonstrate an inability or unwillingness to act in a
civil manner. Faretta expressly recognizes a trial judge’s
right to terminate self-representation under such
circumstances. The state court’s decision is a reasonable
application of this rule. Indeed, any other response would
have been unreasonable under the circumstances.
C. Other Claims
Lastly, Brooks claims he was denied his right to present a
defense, the trial court erroneously ruled that he gave a
confession and the prosecutor engaged in misconduct. To a
large extent, these claims amount to no more than a
rephrasing of his previous complaints concerning the quality
17a
of his attorney’s representation. His allegation that he was
denied the right to present a defense, for example, is simply a
rehash of his claim the his attorney failed to provide effective
representation. His claim that the trial court erroneously
concluded he had given a confession likewise is a
restatement of his claim that the testimony of the two
detectives who interviewed him was not adequately
challenged. And his claim of prosecutorial misconduct
amounts to an accusation that the prosecution knew the
detectives were not testifying truthfully.
I am satisfied that none of these claims has merit. The
trial transcript demonstrates that every precaution was made
in order to assure that, despite Brooks’ outrageous behavior,
his constitutional rights were meticulously protected. The
trial court commended Brooks’ attorney for his conscientious
professionalism under extremely trying circumstances. The
reports filed by police officers closely matched radio
recordings of their transmissions during the series of events.
The court of appeals rightfully refused to give further
consideration to conclusory claims of collusion and
conspiracy since they were not supported by citations to the
record or to legal authority. I am satisfied that it neither
ignored nor unreasonably applied federal law in reaching its
decision. Accordingly, I find no basis for granting Brooks
the relief he seeks.
For the foregoing reasons, IT IS ORDERED that the
petitioner’s application for a writ of habeas corpus is denied,
and this case is dismissed. The clerk of the court shall enter
judgment accordingly.
Dated this 28th day of October, 2002.
18a
Appendix C
Supreme Court of Wisconsin.
STATE
v.
BROOKS
No. 98-0440-CR
December 22, 1999
Disposition: Petition for Review Denied.
Disposition: 12/20/1999.
(SYKES, J., did not participate)
19a
Appendix D
State of Wisconsin Court of Appeals, District I
STATE OF WISCONSIN
v.
EDDIE LEE BROOKS
(L.C. # F-904061)
97-2900
October 6, 1999
OPINION AND ORDER.
Before Fine, Schudson and Curley, JJ.
Eddie Lee Brooks was convicted of one count of first-
degree intentional homicide while armed with a dangerous
weapon, two counts of attempted first-degree intentional
homicide while armed with a dangerous weapon, one count
of recklessly endangering safety while armed with a
dangerous weapon, one count of burglary, party to the crime,
and one count of being a felon in possession of a firearm.
Brooks appeals from a circuit court order denying his
postconviction motion for a new trial. Based upon our
review of the briefs and record, we conclude that this appeal
is appropriate for summary disposition. See Rule 809.21(1),
STATS. We affirm the circuit court’s order.
The criminal complaint initiating this case indicates that
on November 18, 1990, Brooks and a companion burglarized
the North Avenue Smoke Shop in the City of Milwaukee.
Numerous weapons were taken during the burglary. Upon
20a
receiving a call that a burglary was in progress, a number of
Milwaukee police officers, including Sergeant Michael
Tourmo, responded to the call and went to the scene. Police
pursued Brooks and his companion as they fled from the
scene. Brooks fired a weapon at police as he ran.
Eventually, Brooks ran to a residence near the North Avenue
Smoke Shop where he hid on a porch. Shortly thereafter,
Sergeant Tourmo ran by the porch where Brooks was hiding.
Brooks saw Sergeant Tourmo and shot him in the head.
Brooks left the porch and resumed his flight. The police
apprehended Brooks shortly thereafter and took him into
custody. Brooks confessed to shooting Sergeant Tourmo.
Testimony of the medical examiner confirmed that Sergeant
Tourmo was shot in the top of the head and that the entry
wound was consistent with his having been shot while he
was on ground level and the shooter was elevated.
Following Brooks’s jury trial, the circuit court entered the
judgment of conviction on December 5, 1991.' On June 11,
1997, this court issued an order construing a petition for a
writ of habeas corpus that Brooks filed pursuant to State v.
Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), as a
motion for an extension of time for filing his notice of appeal
or postconviction motion. Our order granted the motion and
reinstated Brooks’s postconviction rights under RULE 809.30,
STATS. |
Brooks then filed a postconviction motion alleging that
he was denied the effective assistance of trial counsel; that
the trial court erred in refusing to permit Brooks to be
' The information charged Brooks with one count of first-degree
intentional homicide while armed, three counts of attempted first-degree
intentional homicide while armed, one count of burglary, party to the
crime, and one count of being a felon in possession of a firearm. The jury
convicted Brooks on all counts but one. On one count of attempted first-
degree intentional homicide, the jury found Brooks guilty of the lesser
included offense of recklessly endangering safety.
2la
represented by jailhouse lawyers or to proceed pro se during
trial; and that errors occurred during the tnal, allegedly
resulting from conspiracy, perjury and _ prosecutorial
misconduct. The trial court summarily denied Brooks’s
motion without a hearing and Brooks appeals.
A circuit court has the discretion to summarily deny a
postconviction motion “if the record conclusively
demonstrates that the defendant is not entitled to relief.”
State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50, 53
(1996) (quoting Nelson v. State, 54 Wis.2d 489, 497-98, 195
N.W.2d 629, 633 (1972)). The issue of a motion’s factual
sufficiency presents a question of law subject to de novo
review by this court. See id. If we independently confirm
the circuit court’s determination of the motion’s
insufficiency, we then apply the deferential standard of
review to determine whether the trial court’s summary denial
of the motion resulted from an erroneous exercise of
discretion. See id. at 310-11, 548 N.W.2d at 53.
To establish ineffective assistance of counsel, a defendant
must demonstrate that (1) counsel’s performance was
deficient; and (2) that deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The circuit court considering a postconviction claim
of ineffective assistance must initially decide whether a
defendant’s allegations raise a question of fact sufficient to
warrant an evidentiary hearing. See State v. Toliver, 187
Wis.2d 346, 360, 523 N.W.2d 113, 118 (Ct. App. 1994);
State v. Washington, 176 Wis.2d 205, 214-15, 500 N.W.2d
331, 335-36 (Ct. App. 1993); State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908-09 (Ct. App. 1979).
A defendant cannot rely on conclusory allegations of
ineffective assistance of counsel to secure an evidentiary
hearing. See Bentley, 201 Wis.2d at 313, 548 N.W.2d at 55.
To obtain an evidentiary hearing on an ineffective assistance
ee
22a
of counsel claim, a defendant must allege both deficient
performance and prejudice with specificity. See id. at 313-
14, 548 N.W.2d at 55 (“[A] defendant should provide facts
that allow the reviewing court to meaningfully assess his or
her claim.”).
Brooks’s postconviction motion alleged that his trial
counsel was ineffective for failing to challenge the
admissibility of his confession, failing to call certain
witnesses at trial, failing to present a defense, failing to
impeach the State’s witnesses, and failing to investigate the
case before trial. We will address each contention in turn.
Brooks’s contention that his trial counsel failed to
challenge the admissibility of his confession is disingenuous.
Trial counsel’s predecessor on the case challenged the
confession, arguing that it was the fruit of an illegal arrest,
was coerced and was obtained in violation of the
requirements of Miranda v. Arizona, 384 U.S. 436 (1966).
The trial court conducted an evidentiary hearing on Brooks’s
challenges to the admissibility of his confession. Brooks’s
postconviction motion alleges no specific facts or principles
of law supporting his contention that his counsel’s efforts to
suppress the confession were ineffective within the meaning
of Strickland v. Washington, 466 U.S. 668, 687 (1984)
(Ineffective assistance of counsel exists when counsel’s
performance is deficient and the deficient performance
prejudices the defense.). Accordingly, we conclude that the
trial court did not err in denying this claim without a hearing.
Brooks argues next that his trial counsel was ineffective
for failing to call certain witnesses at trial:
Trial attorney did refuse to call any
witnesses. He never had any plans to call any
witnesses, because he never put in any witness
list. See record, court record in this case. I
put in a witness list, but was deny [sic] that
23a
right by trial judge and trial counsel, witnesses
who was [sic] witness to part of this case, who
had personally observed part of this incident,
and whose testimony would have been
relevant and material to my defense.
We conclude that these conclusory allegations were
inadequate as a matter of law to require the trial court to
conduct an evidentiary hearing on them.
Brooks complains next that his trial counsel was
ineffective for failing to mount a defense. Specifically,
Brooks contends that his attorney was ineffective for failing
to call Detective Kenneth McHenry, one of the two
detectives who were present when Brooks gave his statement
to police, and to examine him with respect to the allegation
that he gave false testimony in an unrelated case at another
time. We conclude that Brooks’s attorney committed no
error in declining to pursue this line of defense, inasmuch as
Brooks could not introduce extrinsic evidence of Detective
McHenry’s alleged false testimony in an unrelated case under
§ 906.08(2) STATS.”
Brooks argues next that his attorney failed to impeach the
State’s witnesses. We conclude that Brooks’s catalogue of
2 Section 906.08(2) STATS. provides:
SPECIFIC INSTANCES OF CONDUCT. Specific instances of
the conduct of a witness, for the purpose of attacking or
supporting the witness’s credibility, other than a conviction
of a crime or an adjudication of delinquency as provided in
s. 906.09, may not be proved by extrinsic evidence. They
may, however, subject to s. 972.11(2), if probative of
truthfulness or untruthfulness and not remote in time, be
inquired into on cross-examination of the witness or on
cross-examination of a witness who testifies to his or her
character for truthfulness or untruthfulness.
24a
errors and inconsistencies in the testimony of the State’s
witnesses recounts only the most trivial disagreements over
the course of events during the crime and its investigation.”
These points taken together did not add up to an adequate
factual basis for the trial court to order an evidentiary
hearing. As we have noted before, “[z]ero plus zero equals
zero.” State v. Marhal, 172 Wis.2d 491, 507, 493 N.W.2d
758, 766 (Ct. App. 1992) (internal quotation marks and
quoted source omitted).
Brooks also contends that his attorney did not investigate
the case before trial.- The record contradicts this assertion.
Trial counsel’s predecessor used an investigator who
independently interviewed witnesses, viewed the crime scene
and took photographs. This evidence was turned over to
Brooks’s trial attorney well in advance of trial along with the
State’s response to the defense’s discovery requests.
Brooks’s attorney also engaged an investigator to assist in
preparing the case. Accordingly, we conclude that the trial
court properly denied this claim without a hearing as well.
We turn now to Brooks’s contention that the trial court
improperly denied his motion to proceed pro se and his
motion to be represented by two jailhouse lawyers. Neither
Brooks’s postconviction motion nor his appellate brief
explains how the trial court erred in concluding that Brooks,
an inarticulate, unschooled, and disruptive individual, was
not competent to represent himself in this complex trial. See
State v. Klessig, 211 Wis.2d 194, 212, 564 N.W.2d 716, 724
(1997) (setting forth the factors a trial court should consider
> These trivial disagreements included, but were not limited to, whether
Brooks remained in the squad car at all times when police escorted him to
the scene of the crime or whether Brooks was allowed to exit the squad
car at the crime scene; the precise time that Brooks’s car was towed from
the crime scene; and the precise time that a detective made certain entries
into his memo book. _
25a
in deciding whether a defendant is competent to proceed pro
se). Furthermore, a defendant has no right to legal
representation at trial by persons who are not members of the
State Bar. See State v. Olexa, 136 Wis.2d 475, 481, 402
N.W.2d 733, 736 (Ct. App. 1987). We conclude, therefore,
that Brooks’s challenge to these trial court rulings lacks
merit.
Brooks concludes his appeal with the argument that his
conviction resulted from prosecutorial misconduct and a
conspiracy involving the trial court, all of the attorneys and
police officers involved in the case, as well as many others.
These claims are not supported by citations to the record or
authorities that permit meaningful consideration of them by
this court. As the Wisconsin Supreme Court once observed,
“[a]n appellate court is not a performing bear, required to
dance to each and every tune played on an appeal.” State v.
Waste Management of Wis., Inc., 81 Wis.2d 555, 564, 261
N.W.2d 147, 151 (1978). Accordingly. we decline to address
these putative claims.
In light of the foregoing discussion, this court concludes
that Brooks was not entitled to relief on the errors he claims
occurred before the trial court. Accordingly, we hold that the
trial court did not err in its exercise of discretion when it
summarily denied Brooks’s postconviction motion without a
hearing.
Upon the foregoing reasons.
IT IS ORDERED that the order of the circuit court is
summarily affirmed pursuant to RULE 809.21(1), STATS.
26a
Appendix E
Circuit Court for Milwaukee County, Wisconsin
STATE OF WISCONSIN,
Plaintiff,
v.
EDDIE LEE BROOKS,
Defendant.
Case No. F-904061
JURY TRIAL
Reporter’s Official Transcript of Proceedings
October 16, 1991
Before:
Honorable Jeffrey A. Wagner, Branch 38
OK KK
Page 8
OK K
23 MR. BARTH: There has been nothing as to
24 the competency to waive an attorney. However I
25 believe that there is something as to competency
27a
Page 9
1 and Mr. Brooks is competent to proceed.
2 THE COURT: No, I understand that. I
3 was talking about the report that was used for the
4 competent to proceed, but there’s a different
5 standard for competency to waive one’s nght to an
6 attorney, and that’s -- I’m looking for that
7 evaluation or at least that paper or document
8 because it might suggest something to the Court
9 upon its reading.
10 | MR.BARTH: Again, Your Honor, there has
11 only been the report as to the competency. There
12 has not been one to the competency to represent.
13 THE COURT: Who’s got that? Or does it
14 exist?
15 MR. BARTH: I do not have it with me.
16 Do you have a copy of the report? I do not have
17 it, Your Honor.
18 THE COURT: Pardon?
19 MR. BARTH: I do not have it with me.
20 THE COURT: All nght. Mr. Brooks, do
21 you understand the magnitude of the undertaking and
22 the disadvantages of self representation?
23 THE DEFENDANT: Yes, I do, Your Honor.
24 THE COURT: And what would they be?
25 THE DEFENDANT: Huh?
28a
Page 10
| THE COURT: And what would they be?
2 THE DEFENDANT: Well that I would be
3 waiving my right to a public pretendant and be able
4 to defend myself.
5 THE COURT: I know but what would be the
6 disadvantages of self representation?
7 THE DEFENDANT: Well I don’t know the
8 law that good but I do know enough.
9 THE COURT: Pardon?
10 THE DEFENDANT: I don’t know the law
11 that good but I do know enough.
12 THE COURT: Well you don’t have to know
13 that law in order to represent yourself. It’s a
14 question whether or not you understand the nature
15 of what your motion pertains to as far as whether
16 or not the Court’s going to grant your motion.
17 THE DEFENDANT: Well as to what the law
18 be giving my right to effective assistance of
19 counsel which I never had.
20 THE COURT: Are you aware of any type
21 rules governing the conduct of the trial?
22 THE DEFENDANT: No, I’m not.
23 THE COURT: And you understand that
24 presenting a defense is not just getting on the --
25 just telling your story. Do you understand that? —
29a
Page 11
| THE DEFENDANT: Yes. It’s asking
2 question. Put like in a -- it’s I got a right to
3 cross examine -- right to cross examination of the
4 witness.
5 THE COURT: Do you think you are
6 skilled, sir, as to -- is better than the skill of
7 an attorney who is well seasoned and understands
8 the rules of evidence and knows what’s
9 objectionable and what’s not objectionable? ~
10 THE DEFENDANT: No, my skill is not
11 better than an attorney at law. But, Your Honor --
12 THE COURT: How do you perceive yourself
13 to be as effectuate or as effective I should say as
14 counsel would be? ;
15 THE DEFENDANT: Well to do a lot more
16 than what public pretender won’t do for me.
17 THE COURT: Don’t you think it’s best
18 for yourself, best for your case to cooperate with
19 your lawyer?
20 THE DEFENDANT: Cooperate?
21 THE COURT: And cooperate with your
22 lawyer and assist him in your defense because of
23 the knowledge that he has.
24 THE DEFENDANT: Wcuid I cooperate with
25 him? This man won’t even investigate stuff for me.
30a
Page 12
1 He refuse to give evidence to me. So how you talk
2 about cooperate with him? He never cooperate with
3 me. Now how is a man supposed to defend me if he
4 refuse to investigate. We went out to the scene
5 today. Now what you all was looking at, what you
6 all sent people out to investigate. I been told
7 him to investigate that fact forme. And never
8 been done. Did just like -- I got more -- I could
9 got better answer talking to a wall. He got a --
10 at least I could have got an echo.
11 THE COURT: Mr. Barth is very fine
12 lawyer, sir. He’s got an investigator on this
13 case, who I’m sure has investigated the case as
14 well as any case that’s been investigated. Because
15 you are not happy or perceive additional things
16 that may need to be investigated, those are things
17 to relate to your lawyer so they can possibly be
18 investigated.
19 THE DEFENDANT: When I had put up this
20 number one I wrote an affidavit of ineffective
21 assistancy of counsel. What I stated on this is
22 how this man would ineffective assistance of
23 counsel for me. And I wrote public defender office
24 in Madison trying to get something done. I wrote
25 down here to Marcus Johnson telling this man would
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1 not have evidence introduced for me, nor, nor would
2 he give me certain evidence. And now he forward
3 the letter to Michael Barth. Now how this man
4 ineffective assistance of counselor if he won’t
5 investigate forme. And he -- or he won’t give me
6 evidence? Only thing I could think of he just join
7 the home team.
8 THE COURT: Mr. Barth, you stated to the
9 Court yesterday that you are prepared to proceed,
10 is that correct?
ll MR. BARTH: Yes.
12 | THECOURT: Completely investigated this
13 case?
14 MR. BARTH: I’m sorry?
15 THE COURT: Completely investigated this
16 case for the -- with the investigator?
17 MR. BARTH: Yes.
18 THE COURT: And you are prepared to go
19 forward, are you not?
20 MR. BARTH: I’m prepared to whatever the
21 Court orders.
22 THE COURT: State want to be heard on
23 this issue as to whether or not the defendant is
24 competent to voluntarily and knowingly and
25 intelligently waive that constitutional right to
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1 proceed pro se?
2 The Court based upon the coiloquy that
3 the Court’s had with the defendant will be relying
4 on Pickins versus State, State versus Clinton,
5 Faretta versus California, and a number of other
6 cases. Go ahead.
7 MR. McCANN: If it please the Court,
8 just a number of issues that I’d like to raise for
9 the information of the defendant and for the
10 illumination of the Court in terms of what the ~
11 Court may wish to consider in assessing this
12 request.
13 One, we -- this is going to be a>
14 difficult challenge case. We will very probably --
15 we don’t decide this until after if there’s a
16 conviction. If there is a conviction under the
17 first degree intentional homicide charge, this
18 occurred after the adoption of the new State
19 statute on intentional homicide. And it will in
20 all likelihood be the recommendation of the
21 District Attorney’s office, if there is a
22 conviction under Count 1, that you would set his
23 first release date far beyond the natural term of
24 his life. In other words, we would be requesting
25 even under Count 1 that you not release him for
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1 parole probably until after the year 2050 when he
was almost certainly, certainly be dead. We would
intend to seek maximum penalties of 25 years on
Count 2, consecutive to the life sentence. Maximum
penalty under Count 3, which would be another 25
years, consecutive to the life sentence and the 25
years in Count 2. Maximum sentence under Count 4
which would be another 25 years which is a total of
75 years plus life in effect without parole. Plus
10 on the armed burglary or for the burglary we would
11 be seeking ten years consecutive. And for the
12 felon in possession we would be seeking the maximum
13 of two years also consecutive to all other counts.
14 As the Court knows we’ve filed also for
15 a repeater under the repeater and will recommend
16 the maximum or each of those counts, six years per
17 count.
18 It is our intent as erstwhile as we can
19 to seek with all our capability to remove this man
20 from society for the rest of his natural life. We
21 will pull no punches because he undertakes to
22 represent himself. We will push it as aggressively
23 as though he were represented by most skilled
24 counsel such as Mr. Barth. There will be no easy
25 going for this defendant. We intend to object to
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improperly phrased questions. We intend to object
if he tries to testify improperly. We intend to
hold him to the rules of law and the rules of
evidence as we would counsel.
There will also be some sophisticated
issues possibly raised. The Court has indicated
that it will entertain argument on the Balcerzak
matter if certain issues are filed and certain
issues raised. There will be issues on the
10 Boettcher, whether Boettcher -- what can be
11 discussed with respect to Ms. Boettcher. We --
12 there may be issues -- there certainly will be
13 ballistics, an issue on ballistics. The expertise
14 involved to cross examine Mr. Templin who is a
15 skilled ballistics expert.
16 It is my understanding that the
17 defendant intends to claim that he didn’t shoot
18 Officer Tourmo or that’s his basic approach. Our
19 key evidence will be ballistics evidence. And the
20 cross-examination of the ballistics expert is a
21 formidable challenge if one hopes to be successful.
22 And we are not going to permit improperly put
23 questions.
24 There will -- there may be evidence on
25 gunshot residue on barium and antimony and the
OOoryannh WN —
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effect of that. Again that is expert testimony
requiring some knowledge of the chemical
background. We would tend to object to keep
improper matters from the jury. We intend to
object if irrelevant matters are raised. And we
intend to object if he giving general objections
and not stating the grounds.
8 As the Court full well knows sometimes
9 an improperly asked question, a skilled attorney
10 can rephrase it properly and get the evidence in.
11 In terms of the cross-examination is an art. We
12 intend to present dozens of witnesses.
13 Cross-examination is an art. Takes years of skill
14 to acquire the art that Mr. Barth has. This
15 defendant is somewhat inarticulate. We’ve heard
16 him here in court. He is cunning I think. But in
17 terms of articulate or persuasive orally I don’t
18 think so.
19 In terms of interruptions, improper .
20 interruptions we will cbject to that. There are
21 times when a skilled attorney decides whether a
22 witness can do more damage or better off to not to
23 call the witness. The skilled decision when to ask
24 no more questions, the question of whether the
25 defendant himself will testify. So far the Court
SNAP WN —
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1 has asked as I see it several questions to which
2 there has been not as yet any satisfactory answer. .
3 Number one, what is this man’s
4 education. He said he got a GED at sixteen and a
5 half. I wonder how he did in school up to that
6 point. What if he’s attempted to educate himself
7 in the law in any other fashion. And how he did as
8 astudent. Was he a special student? Was he ina
9 special class. Was he -- in other words, what was
10 the level of his performance.
11 Secondly, he has not answered the
12 Court’s question what are the lesser included
13 offenses. What can he petition the Court for or
14 argue or shape the evidence as it comes in to
15 induce the jury to opt for a lesser included
16 offense.
17 So, one, I don’t think he has indicated
18 that he knows what the lesser included offenses
19 are, and secondly, as he indicated how to shape the
20 testimony to get it that way. The range of
21 allowable punishment I have discussed the maximum.
22 Of course there are below that you can follow. The
23 life can go down to regular life which is parole in
24 thirteen and a half years. And he could secure
25 probation basically for the other counts.
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| What are the defenses to the charge? I
2 think the Judge -- the Court has touched on that
3 but not put that inquiry directly to him. Not
4 necessarily what his defense might be, but what are
5 the defenses. And what is the -- and the Court has
6 mentioned mitigation of the accusations but has not
7 inquired directly, sir, what do you mean to
8 understand by mitigation. And other general
9 questions that would bear on his understanding.
10 I know the law requires not just that
11 he’s told these things but that he is -- that the
12 evidence is an understanding of these things and
13 before they can be really knowing, intelligent
14 waiver.
15 It’s been often said that a man who
16 represents himself has a fool for a lawyer. And in
17 this case we have an unschooled man, no real formal
18 education apparently beyond GED. And he must be
19 told that this is hard ball we’re playing. This
20 isn’t bean bag and this isn’t sport. This is his
21 life at stake. We fully intend that he never again
22 walk the streets of the city. We will work as
23 skillfully as we can. We will make every effort to
24 see that he is locked behind bars. We will yield
25 no ground because he is not a high school graduate.
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1 We will in no way temper our arguments because he
2 may be inarticulate. We will in no way blunt the
3 thrust of our attack because of his lack of
4 education and training. So let him be fully
5 informed of what our intents are and the fact that
6 we will in no way indulge this pursuit.
7 This is an ill-advised, unwise, tragic
8 for him, bad decision. I am not satisfied with
9 that he’s fully literate or that he’s competent to
10 speak for himself or that he has sufficient
11 understanding and I would urge the Court to go with
12 those questions on defenses on mitigation and I
13 think better we take an hour today than be
14 confronted with -- it is no doubt the intent of the
15 defendant to make error on this record. All of us
16 have been -- everybody in this room has had
17 extensive experience and knows what’s afoot here
18 and I would -- I for one would much rather take an
19 hour now for the Court to -- as much as we’re
20 desirous of proceeding this now being the third
21 day, I would rather much take an hour now than be
22 debating this in the Supreme Court and through a
23 series of habeas corpus in the Federal Court.
id THE COURT: You put that very well, Mr.
25 McCann, and the Court believes that those things
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1 that you have stated should be recognizable to the
2 defendant before the Court can allow him to proceed
3 prose. You heard Mr. McCann, Mr. Brooks, did you
4 not?
5 THE DEFENDANT: Yes, I did, Your Honor.
6 Proper person not pro se.
7 THE COURT: Pardon?
8 THE DEFENDANT: Appearing in proper
9 person not pro se. In fifth edition of Black Law
10 edition would explain what I just said.
11 THE COURT: Well let me ask you. What
12 are your defenses of potential defenses to the
13 offenses that are contained in the Information?
14 THE DEFENDANT: Of man not guilty by
15 necessary on that count. Michelle Boettcher not
16 guilty because I did never fire a shot, nor
17 Mozejewski. And as far as Tourmo go, there’s a lot
18 more to that case than what they want to admit.
19 Just like went back out to the scene today. They
20 think it might be holes in other places. Number
2i one, they didn’t even investigate this case good.
22 They can’t say where magic bullet and stuff. Hey,
23 this whole case this ain’t nothing but a
24 conspiracy. That’s all it is. If it’s not, where
25 is the magic bullets at. Where did my at. Went
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1 back out to the scene today you might find them in
2 different place. This ain’t nothing but big
3 conspiracy and I can prove half of what I’m saying.
4 THE COURT: So basically one of your
5 defenses is that there’s conspiracy.
6 THE DEFENDANT: That’s right. Because
7 of changing everything, and doctor and everything
8 is included. Court transcript.
9 THE COURT: What about any mitigating
10 factors do you see, sir? Mr. Brooks, what about
11 mitigating factors as far as defenses, factual
12 basis for lesser included?
13 THE DEFENDANT: Well number one come
14 down to not guilty by necessary. Not guilty by
15 necessary. I got the right to defend myself. If
16 people get to popping at me nine time, I’m within
17 my right to do anything, anything to terminate that
18 threat. As far as Mozejewski and Boettcher, I
19 never did do that. You want me to -- like I said
20 once before, I always take a lie detector test on
21 anything I said.
22 THE COURT: You don’t have any comment,
23 Mr. Barth?
24 MR. BARTH: Your Honor, I did meet with
25 Mr. Brooks at Waupun prison. I did give him a
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1 detailed memo that discussed the elements of Count
2 1 of this case. In that memo I also broke down
3 mitigating circumstances. Things that could
4 possibly result in a conviction of a lesser
5 included on Count 1, that being the second degree.
6 I believe that Mr. Brooks does have the right to
7 represent himself provided that he makes a knowing
8 and voluntary waiver to that effect.
9 Mr. Brooks has been advised by Mr.
10 McCann what Mr. McCann will seek in this matter.
11 And that Mr. McCann will not hold back. That is
12 one of the disadvantages of representing himself.
13 However if Mr. Brooks understands that Mr. McCann
14 is going to pursue this matter to the fullest
15 extent of his abilities and that he would hold Mr.
16 Brooks to the same standards as he would hold a
17 licensed attorney, --
18 THE COURT: Well that -- Well that --
19 one of those things it goes to obviously the rules
20 of evidence are going to be applicable as to anyone
21 in this courtroom who practices.
22 MR. BARTH: I know that Mr. Brooks has
23 filed numerous motions in this matter pro se.
24 THE DEFENDANT: Proper person.
25 MR. BARTH: Proper person as he puts it,
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1 which is the English translation I believe. That
2 he does understand what the basis of those motions
3 or at least believe that he has sufficient factual
4 basis to put forth those motions.
5 THE COURT: Well --
6 MR. BARTH: I believe that he is
7 competent to represent himself provided he fully
8 understands what he is giving up and that is the
9 right of a person who’s well versed in the areas of
10 the law.
11 THE COURT: All right.
12 MR. BARTH: That he must also understand
13 that if he does proceed rvo se or proper person,
14 that should he not follow the rules of evidence or
15 becomes disruptive, that he can be removed from his
16.own counsel and that counsel could be inserted at
17 that point.
18 I am here. I am prepared to proceed. I
19 am prepared to proceed as either lead counsel or
20 stand by counsel, whatever the Court desires.
21 Should Mr. Brooks prove incapable of representing
22 himself, I will be here to step in at that point.
23 THE COURT: All right. In that case law
24 there has to be a deliberate choice. There’s got
25 to be a voluntary and knowing waiver. The Court is
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1 somewhat skeptical on the defendant’s deliberate
2 choice or voluntary choice as to this issue based
3 upon the defendant’s prior conduct as far as to --
4 as far as him trying to obstruct the process of his
5 triai based upon his continuous motions seeking new
6 counsel. The Court questions legitimacy as to that
7 voluntariness based upon the prior record in this
8 case. Quite frankly I don’t -- I would perceive it
9 and it could be perceived based upon the record
10 that this is another ploy by this defendant based
11 upon the prior motions that he’s filed.
12 But let’s say that it is voluntary.
13 Then it still has to be certainly with knowledge
14 and with an intelligent decision and certainly the
15 awareness of the difficulties and disadvantages
16 that may -- that may come up in the course of the
17 trial -- and of course Mr. McCann certainly brought
18 many of those factors out, which the Court in the
19 following decision will certainly adopt as some
20 findings.
21 I -- during my colloquy and my
22 observation of this defendant over the last couple
23 of days I don’t believe that he’s given any
24 satisfactory answers to some of the questions that
25 the Court has presented. Whether or not it be the
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defenses, the mitigation, whether or not there are
lesser included offenses. He hasn’t been very
articulate -- articulate in explaining that to the
Court, which goes to his knowledge or knowingly
waiving that constitutional right.
This is going to be a very difficult and
challenging case with a lot of different
evidentiary issues. And because of the magnitude
9 of those -- magnitude of the case that follows --
10 there’s probably -- at least from the witness list
11 there’s a lot of expert witnesses that are going to
12 be called to testify. And that goes to whether or
13 not defendant has the basis based upon the record
14 in this case, based upon his lack of educational
15 experiences, his articulateness, whether or not he
16 really can form the competency to knowingly waive
17 that constitutional night. For that reason the
18 Court’s going to deny the defendant’s motion. And,
19 counsel, you can proceed with him. Let’s go to
20 opening arguments.
21 THE DEFENDANT: Can you move -- can you
22 remove the bracelet off my arm so I can at least go
23 through my legal papers?
24 THE COURT: I can’t hear you, Mr.
25 Brooks.
ConA kh WN
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Appendix F
CONSTITUTIONAL PROVISION INVOLVED
Amendment VI to the Constitution of the United States
In all criminal prosecutions, the accused shail enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnessés in his favor, and to have the Assistance of Counsel
for his defence.
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Appendix G
STATUTORY PROVISION INVOLVED
Title 28. Judiciary and Judicial Procedure
Part VI, Chapter 153. Habeas Corpus
§ 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.
(b)(1) An application for a wnt of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in
the courts of the State; or
(B)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the nights of the applicant.
(2) An application for a wnt of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel, expressly
waives the requirement.
47a
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
- presented.
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that 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) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant
shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
48a
(ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and -
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the
evidence adduced in such State court proceeding to support
the State court's determination of a factual issue made
therein, the applicant, if able, shall produce that part of the
record pertinent to a determination of the sufficiency of the
evidence to support such determination. If the applicant,
because of indigency or other reason is unable to produce
such part of the record, then the State shall produce such part
of the record and the Federal court shall direct the State to do
so by order directed to an appropriate State official. If the
State cannot provide such pertinent part of the record, then
the court shall determine under the existing facts and
circumstances what weight shall be given to the State court's
factual determination.
(g) A copy of the official records of the State court, duly
certified by the clerk of such court to be a true and correct
copy of a finding, judicial opinion, or other reliable written
indicia showing such a factual determination by the State
court shall be admissible in the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled
Substances Act, in all proceedings brought under this section,
and any subsequent proce:dings on review, the court may
appoint counsel for an applicant who is or becomes
financially unable to afford counsel, except as provided by a
rule promulgated by the Supreme Court pursuant to statutory
authority. Appointment of counsel under this section shall be
governed by section 3006A of title 18.
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(i) The ineffectiveness or incompetence of counsel during
Federal or State collateral postconviction proceedings shall
not be a ground for relief in a proceeding arising under
section 2254.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.