Rhodes v. Dittmann
| Citation | 783 F.3d 669 |
| Decision Date | 14 April 2015 |
| Docket Number | No. 14–1741.,14–1741. |
| Parties | Joel RHODES, Petitioner–Appellee, v. Michael A. DITTMANN, Warden, Columbia Correctional Institution, Respondent–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Brian P. Mullins, Attorney, Burke & Mullins, Milwaukee, WI, for Petitioner–Appellee.
Damiel J. O'Brien, Assistant Attorney General, Madison, WI, for Respondent–Appellant.
Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
Accused of kidnapping and aggravated battery, Joel Rhodes had trouble deciding whether to take advantage of his constitutional right to counsel. After going through several lawyers, he convinced the state court that he wanted to represent himself. But shortly before his trial began in May 2007, he informed the court that he had changed his mind and needed more time for retained counsel to prepare. The court refused to go along; it informed Rhodes that his request was untimely and that it smacked of gamesmanship. A jury convicted Rhodes, the Wisconsin Court of Appeals affirmed, and the state supreme court denied review. Rhodes then turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. The district court ordered the writ to be issued, but its ruling was stayed pending appeal. We find neither of the state courts' reasons for rejecting Rhodes's last-minute request for counsel to be unreasonable, and thus we conclude that the district court's judgment is inconsistent with the deferential standard of review that applies here. We therefore reverse.
This litigation stretches all the way back to 2002, when Rhodes was charged by state prosecutors with two counts of kidnapping. He retained Peter Kovac as his trial counsel. Kovac represented Rhodes well: a jury acquitted him on one count, while a different jury convicted him on the other count. Rhodes appealed the conviction, primarily on the ground that Kovac had rendered ineffective assistance, but the Wisconsin Court of Appeals (upon the state's confession of error) reversed and remanded based on a problem with the jury.
On remand, the state added a charge of aggravated battery to the information. The court appointed a public defender, Richard Kaiser, to represent Rhodes. On March 13, 2007, nearly two months before the trial was scheduled to begin, Kaiser moved to end his representation of Rhodes, because Rhodes wanted to represent himself. The trial court held a hearing on Kaiser's motion on April 2, during which it warned Rhodes about the dangers of self-representation. It did not rule on the motion that day, however, in part because the judge wanted Rhodes and Kaiser to have more time to attempt to resolve their differences.
The hearing resumed on April 6, at which point the judge had an extensive exchange with Rhodes about his decision to proceed pro se. After the judge provided Rhodes and his attorney with a waiver form, Rhodes spoke again. He told the judge that he “was in the process of hiring Attorney Kovac but I don't know what happened,” and noted that Kovac was in the courtroom. Rhodes said that he did not know if Kovac was “taking the case or not.” This comment prompted the judge to question Kovac directly. Kovac said that Rhodes had asked him to be in court for the hearing and that in his view Rhodes was not engaging in gamesmanship or building a record for an appealable issue. Nonetheless, he added, Rhodes had not yet retained him. After receiving the completed waiver form from Rhodes, the judge again questioned Rhodes about his decision to represent himself, and Rhodes confirmed that he still wished to do so “[b]ecause I think that I can better defend myself in this case.” The judge then granted Rhodes's request to proceed pro se.
We would not be here if that had been the end of the matter. Between the hearing we have just described and the start of the trial, Rhodes and Kovac sent a stream of correspondence to the court. On April 18, Rhodes wrote the judge a short letter informing him that he authorized Kovac “to speak on my behalf” to the judge and the prosecutor “in connection with the case that I have pending in your court.” On April 23, Kovac wrote to the court vouching for Rhodes's character, including his interests in religion and philosophy, and opining that proceeding pro se would be “difficult and bad” for Rhodes. Kovac explained that Rhodes had “asked me to represent him at trial,” but that it would be impossible for him to prepare properly in the time remaining before May 7, the scheduled start date. Kovac asked the judge to reschedule the trial in order to allow him to prepare, to “protect [Rhodes's] Sixth Amendment right to counsel,” and perhaps to prompt a plea agreement. On May 1, Rhodes chimed in with a letter to the judge, informing him of difficulties in his preparation. He mentioned that he had asked Kovac to “come in and assist” and complained about the judge's refusal to postpone the trial. Two days later Rhodes wrote the judge again to complain that the state was making his trial preparation difficult. Rhodes told the judge that he “now better appreciate[s] the difficulties of representing myself” and wanted Kovac to represent him. Finally, on May 6, Kovac again wrote to the judge, reiterating that Rhodes had asked Kovac to represent him but that Kovac did not have enough time to prepare for the May 7 trial.
The judge took note of this correspondence at the outset of trial on May 7, before jury selection. He noted that Rhodes previously had accused Kovac of ineffective assistance of counsel in a post-conviction motion. The judge found “bizarre” the fact that Rhodes was now asking the court to allow Kovac again to represent him. He reminded Rhodes that Rhodes had waived his right to counsel after a long exchange with the court. After Rhodes asked whether the judge would grant an adjournment so that Rhodes could “properly prepare,” the judge replied that he was The judge told Rhodes he could not “have it both ways”: The judge later added that he thought “that there are games going on here, which I am not going to put up with,” and that Rhodes's request for Kovac to serve as counsel “roughly two weeks before trial ... is just not going to cut it in this Court's opinion.”
At various other points during the trial, the judge refused to permit Kovac to serve as Rhodes's standby counsel, given Kovac's representations to the court that he was not prepared for the trial. The judge also rejected Rhodes's request for a computer. At one point, Rhodes told the court that his trial was “just a lost cause” and that he “revoke[d] the right to represent myself.” The judge told Rhodes he was “a day late and a dollar short” and declined to change his ruling. Rhodes later made another motion for standby counsel, which the court denied. On the fourth day of trial Kovac actually sat at the counsel table next to Rhodes and asked for permission to deliver Rhodes's closing argument. The judge, after recounting the history of Rhodes's and Kovac's dealings with the court, said that he “believe[d] that this record is being manipulated.” Once again, he declined to alter his ruling. The jury convicted Rhodes on both the kidnapping and aggravated battery charges.
After the trial court denied his postconviction motion for a new trial based on denial of his right to counsel, Rhodes appealed his conviction to the Wisconsin Court of Appeals. His primary point was that the trial court had erred in refusing to allow Kovac to represent him. The court of appeals found no merit in this argument. It described the trial court's April 2007 colloquy with Rhodes discussing his waiver of counsel as “exemplary”: the judge properly warned Rhodes of the dangers of self-representation and promptly questioned Kovac at the hearing once Rhodes mentioned that he had been trying to hire Kovac. This was enough, in the appellate court's opinion, to support a finding of a deliberate waiver of the right to counsel and the assertion of the right to self-representation recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
As for the trial judge's refusal to allow Rhodes to reinstate Kovac as his attorney, the court of appeals concluded that the judge's two-part rationale—the timing of Rhodes's request and Rhodes's gamesmanship—was sound. First, it held that it was “[p]lainly” proper for the trial judge to believe that “an adjournment to permit the involvement of an attorney who concededly was not yet prepared to try the case would have had a significant impact on court administration, calendar management, and witness availability.” It also found no abuse of discretion in the trial judge's assessment of Rhodes's tactics. It pointed out that Rhodes had made three “mutually exclusive” requests regarding his representation. The trial judge's conclusion that “Rhodes was attempting to affect the proceedings adversely by inserting a lawyer into the case who was concededly unprepared and who Rhodes previously challenged as constitutionally ineffective” was a permissible one. The court of appeals thus found that each of the trial judge's reasons independently supported the refusal to permit Rhodes to revoke his waiver of counsel and bring in Kovac to represent him at trial. The court added that Rhodes did not suffer a deprivation of...
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