Wilkerson v. Klem

• Decision Date: 28 June 2005
• Docket Number: No. 03-2842.,03-2842.
• Citation: 412 F.3d 449
• Parties: Melvin E. WILKERSON, Appellant v. Edward KLEM; Attorney General of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

412 F.3d 449

Melvin E. WILKERSON, Appellant v. Edward KLEM; Attorney General of Pennsylvania.

No. 03-2842.

United States Court of Appeals, Third Circuit.

Argued December 14, 2004.

Opinion Filed: June 28, 2005.

Mary Gibbons, Esq. (Argued), Toms River, NJ, for Appellant.

James P. Barker, Esq. (Argued), Francis T. Chardo, Esq., Deputy District Attorney, Harrisburg, PA, for Appellee.

Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

In this habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254, Appellant Wilkerson claims that the state trial court wrongfully deprived him of his Sixth Amendment right to counsel. The District Court considered whether the state court's decision rejecting that claim was contrary to, or an unreasonable application of, Supreme Court precedent and concluded that it was not. We agree and will affirm.

I.

Wilkerson was charged in a Pennsylvania court with retail theft and robbery of a motor vehicle. At a March 16, 1998, hearing, he informed the court that he wanted his current counsel to "step down," and the court allowed counsel to withdraw. App. at 42-43. It then set April 13, 1998, as Wilkerson's trial date and advised him as follows:

Now, Mr. Wilkerson, that's your new trial date. That's less than 30 days. You can't get a lawyer on April 12 and expect him to know how to handle your case the next day. You need to get a lawyer within the next several days so that that lawyer will have an opportunity to engage in discovery with the District attorney, to evaluate your case, interview witnesses, interview you, and that takes a lot of time. There isn't much time.

So we will proceed with your trial on April the 13th. You or your family has to get busy and hire a lawyer within the next several days.

I guess I ought to also tell you that if you can't afford private counsel, you have the right to the free services of the Public Defender's Office. So if you can't come up with the money, I would say by the end of this week, you'd better be going to the Public Defender then right away.

App. at 45-46.

Wilkerson appeared on April 13, 1998, without counsel for the charges to be tried that day, although an attorney from the Public Defender's Office who was representing him on another charge happened to be present. Wilkerson advised the court that his family was in the process of trying to engage a lawyer, but he had not yet heard whether they had been successful. The court decided to proceed to trial and appointed the attorney from the Public Defender's Office as stand-by counsel to assist Wilkerson in his self-representation. The court explained its decision as follows:

I made it very clear to you when we continued this case last term in March when Mr. Dils was standing by your side, that you would need new counsel.

* * *

You knew this case was coming up today. You knew you needed an attorney, and I don't know why you didn't apply for one.

We're not going to delay the system, delay justice, and inconvenience witnesses while you fool around in deciding to get an attorney or not.

It doesn't make any sense that your family is looking for a lawyer for you on one charge, and at the same time you're applying for a public defender in another case. You can afford counsel or you can't.

If you can't afford counsel, you should have gone to the Public Defender's Office for this charge as well as the other. I think you'd qualify since you're under a state prisoner sentence right now, but be that as it may, we're taking this case to trial.

App. at 52-53.

Following his conviction, Wilkerson appealed to the Superior Court of the Commonwealth of Pennsylvania, arguing inter alia that he had been denied his right to counsel. The Superior Court affirmed, concluding that Wilkerson had "forfeited" his right to counsel. In the court's view, Wilkerson's case was governed by Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (1980), where it had held as follows:

"... a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel."

App. at 36 (quoting Wentz, 421 A.2d at 800). While the Superior Court quoted this passage from Wentz cast in terms of "waiver," it made clear that this was a case in which the defendant had forfeited his right to counsel by his conduct and not one involving a voluntary waiver of that right.

The Supreme Court of Pennsylvania declined to review Wilkerson's case. The District Court denied him habeas relief, and we granted a certificate of appealability only on the issue of whether Wilkerson had been denied his right to counsel.

II.

Under provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d)(1), habeas corpus relief from a state conviction may be granted only if the state court decision being challenged "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court clarified these two bases for invalidating a state conviction on habeas review. It held that "contrary to ... clearly established federal law" means just that—"diametrically different, opposite in character or nature, or mutually opposed." Id. at 405, 120 S.Ct. 1495. Moreover, the state court judgment must not merely be contrary to law as articulated by any federal court. It must contradict "clearly established" decisions of the United States Supreme Court alone.¹ Id. This can happen in one of two ways: either the state court ignores or misapprehends clear precedent or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 406, 120 S.Ct. 1495.

The Court in Williams further explained that an "unreasonable application" of Supreme Court precedent occurs when a state court applies the correct rule to specific facts in an objectively unreasonable way. Id. at 409, 120 S.Ct. 1495; see also Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). A court that unreasonably extends an established rule to a new context where it should not apply or, in the alternative, unreasonably fails to extend such a rule to a new context where it should apply may be deemed to have unreasonably applied the correct rule. Williams, 529 U.S. at 407, 120 S.Ct. 1495.

These governing rules were recently applied by our Court in a context similar to this one in Fischetti v. Johnson, 384 F.3d 140 (3d Cir.2004). There, a state court denied Fischetti's motion for the appointment of new counsel, finding that the previously appointed counsel was providing effective representation. The court gave Fischetti three options: continue to trial with present counsel representing him, represent himself with present counsel assisting as co-counsel, or represent himself without co-counsel. When Fischetti declined all three options, the court ordered the trial to go forward with Fischetti representing himself. Following conviction and direct appeal, Fischetti sought habeas relief in the federal courts.

On appeal from the District Court's dismissal of his habeas petition, this Court began its analysis by cautioning that "at the outset, we must articulate the issue presented to the state court precisely." Id. at 150. It then framed the issue as whether Fischetti, by his conduct, had forfeited his Sixth Amendment right to counsel:

Here, Fischetti refused to make a choice between proceeding with current counsel and proceeding pro se. Effectively, he sought to defeat the trial court's denial of his motion for yet another new counsel. In essence, the state court treated him not as if he had waived the right to his attorney but as having forfeited that right. See Goldberg, 67 F.3d at 1101-01. We must therefore examine whether there is "clearly established" Supreme Court law on forfeiture of the right to counsel.

Id. at 150.

Having thus defined the issue, we quickly concluded that the state court's ruling was not "contrary to ... clearly established" Supreme Court law within the meaning of 28 U.S.C. § 2254(d)(1):

[T]he Court's established precedent in this area has not expressly dealt with the matter of forfeiture of counsel, which is the exact issue here. As we have discussed, forfeiture and voluntary waiver are conceptually separate. Moreover, the Supreme Court's prior decisions have not involved facts that are "materially indistinguishable" from the facts surrounding Fischetti's actions in this case. See Williams, 529 U.S. at 406, 120 S.Ct. 1495, 146 L.Ed.2d 389; Moore, 255 F.3d at 107. It follows that the state court ruling here was not contrary to federal law as articulated by decisions of the Supreme Court.

Id.

We then turned to the issue of whether the state court had unreasonably applied Supreme Court precedent. Based primarily on Supreme Court cases involving the constitutional right to self-representation,² we predicted that the Supreme Court would hold that Fischetti had not forfeited his right to counsel. We indicated that, if we were reviewing a federal conviction, we would rule that the trial court erred in not directing the trial to go forward with him being represented by his then present counsel. We stressed, however, that this was not a permissible approach in reviewing a state court conviction:

[I]f our rule on habeas review were to determine if the state judge properly extrapolated the general principles that can be derived from Faretta, Patterson [v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)], an...