Speights v. Frank, 03-2646.

• Decision Date: 19 March 2004
• Docket Number: No. 03-2646.,03-2646.
• Parties: Jael K. SPEIGHTS, Petitioner-Appellant, v. Matthew J. FRANK, Secretary, Wisconsin Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.3d 962

Jael K. SPEIGHTS, Petitioner-Appellant, v. Matthew J. FRANK, Secretary, Wisconsin Department of Corrections, Respondent-Appellee.

No. 03-2646.

United States Court of Appeals, Seventh Circuit.

Submitted March 4, 2004.

Decided March 19, 2004.

Rehearing Denied March 30, 2004.

Jael K. Speights, Prairie Correctional Institution, Appleton, MN, pro se.

James M. Freimuth, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before EASTERBROOK, MANION, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Jael Speights was convicted in a Wisconsin court of burglary and sexual assault. Susan Alesia, who had been assigned to represent him on appeal, concluded that no non-frivolous argument was available and told Speights that she planned to file a no-merit report, following Wisconsin's procedure for criminal defense lawyers to accommodate their obligation to be zealous advocates with their obligation to avoid frivolous litigation. See McCoy v. Court of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Cf. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Speights insisted that counsel prosecute the appeal without a no-merit report; she declined and sent him an "Appellate Decision Form" giving Speights three options in check-the-box fashion:

(1) I want Attorney Alesia to close my file without taking any action.

(2) I want Attorney Alesia to file a No Merit Report.

(3) I want to [sic] Attorney Alesia to withdraw from my case so that I can represent myself or I can pay for another attorney to represent me. I understand that the Public Defender's Office will not appoint another attorney to represent me.

Alesia's letter acknowledged knowing that Speights did not like any of the options but added that she was unwilling nonetheless to file a regular brief on the merits. Speights did not respond promptly, and Alesia wrote him another letter, this time telling him:

It is my understanding that our office is not going to appoint another attorney to represent you. I discussed this situation with my supervisors and I have concluded that because you are not willing to make a decision ... my only option is to file the No Merit Notice of Appeal. This is the document that informs the court that I will be filing a No Merit Report.

That letter induced Speights to act; he returned the Appellate Decision Form with an "X" next to the third option. Alesia then withdrew as his lawyer and asked the court for a 60-day extension of time so that Speights could file his own brief. In the following months Speights received another extension of the deadline and twice requested but was denied appointment of new counsel. He never filed a brief, though, and eventually the court dismissed his appeal for lack of prosecution. Speights then sought collateral review in both state and federal court, arguing that he had been denied the assistance of counsel. The state judiciary, and the federal district judge, denied his petitions, ruling that Speights had waived any entitlement to appellate counsel by selecting the third option on the Appellate Decision Form.

Wisconsin's judiciary concluded that Speights had selected the third option in order to block Alesia from explaining to the appellate court why she had concluded that the appeal was untenable. Speights does not deny that this was his actual motivation (and in any event the state's findings on that factual issue would be hard to upset, see 28 U.S.C. § 2254(e)) but contends that the state was not entitled to put him to the choice. This line of argument boils down to disagreement with McCoy, which held that Wisconsin may require a lawyer who believes that an appeal would be frivolous to explain the weaknesses of any potential appellate arguments. Wisconsin's procedure may lead some defendants to think it better to represent themselves than to allow counsel to arm the court with reasons why they should lose. Once McCoy sustained Wisconsin's approach, however, persons in Speights's position cannot claim a constitutional entitlement to avoid making that decision, even though from their perspective it amounts to a choice among evils. Defendants may have an unconditional right to counsel on appeal, but they do not have a right to counsel who pretend that frivolous arguments actually are meritorious. The choice to which the Appellate Decision Form puts a defendant may be hard, but it is also lawful. Unlike the situation in Betts v. Litscher, 241 F.3d 594 (7th Cir.2001), which held that counsel may not abandon a client who opposes the filing of a no-merit report, attorney Alesia secured her client's unequivocal consent. She made it plain that, in the absence of Speights's agreement, she would file a no-merit report, as McCoy, Anders, and Betts require; Speights replied that he preferred to go it alone.

That leaves Speights's contention that Alesia did not warn him about the dangers of self-representation — or at least give him more information about how the no-merit procedure works — and that this omission entitles him to a new lawyer and a new appeal within the state system. He derives this "right to be warned and informed" from the requirement that waivers of counsel be knowing and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The requirement of voluntariness does not itself require explanations and advice about the risks and benefits of each choice; if it did, Miranda warnings would be woefully inadequate (for th...