Melvin E. Wilkerson v. Edward Klem Attorney General of Pennsylvania

412 F.3d 449, 2005 U.S. App. LEXIS 12778, 2005 WL 1514145

• Court: Court of Appeals for the Third Circuit
• Decided: June 28, 2005
• Docket: 03-2842
• Status: Published

Opinions

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 certifícate of appealability only on the issue of whether Wilkerson had been denied his right to counsel.

II.

Under provisions of the Antiter-rorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), habe-as 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&emdash;“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.” 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.Sd 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)], and Martinez to this different factual setting, we might disagree with the state court ruling.

That is not our role. In reviewing the reasonableness of the state courts’ application of Supreme Court precedent, we must use as our point of departure the specific holdings of the Court’s decisions. When assessing whether the state court acted reasonably in applying or refusing to apply that precedent, we must be mindful that the issue is whether Supreme Court law “dictated” a result in our case, Teague, 489 U.S. at 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (plurality); see Moore, 255 F.3d at 104-05, or whether the circumstances presented here were “closely analogous” to those that formed the basis of earlier high court decisions, Penry, 492 U.S. at 314, 109 S.Ct. '2934, 106 L.Ed.2d 256 (internal quotations and citations omitted).

Id. at 150-51.

Once our analysis in Fischetti was confined to “specific holdings” of Supreme Court decisions and to asking whether those holdings and “closely analogous” circumstances compelled a result contrary to that reached by the state court, we could find no Supreme Court precedent that could be fairly cited as rendering the state court’s decision unreasonable. We noted that “the Supreme Court [had not] expressly ruled out forfeiture of counsel.” Id. at 151. On the contrary, we observed that the Supreme'Court precedents, while not dealing with forfeiture of the right to counsel, provided a “basis to conclude, as the state judge did, that defiant behavior by a defendant can properly cost that defendant some of his Sixth Amendment protections if necessary to permit a trial to go forward in an orderly fashion.” Id. at 151 (citing Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1974) (holding that, following failure of the defendant to return from recess, “the trial could continue because the court’s power to try a case ‘may not be defeated by conduct of the accused that prevents the trial from going forward’ ”); and Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding that, following-disruptive behavior and after being warned by a judge, a defendant could be excluded from the courtroom to allow the trial to proceed)). We then went on to note that “additional support for the reasonableness of the state court’s application of Supreme Court precedent” could be found in our own decisions and those of other Courts of Appeals. Id. at 151. We summarized that case law as follows:

None of these cases approves the specific decision made by the trial judge here. But the appellate cases do establish that the Supreme Court’s general right to counsel decisions are reasonably read as qualified by the trial court’s power to remedy abuse of that right through forfeiture. Further, none of these cited appellate cases saw in the Supreme Court’s precedents any clear guidance as to the precise standard to be applied before forfeiture can be triggered. Put another way, the Supreme Court has not fully defined when a defendant’s misconduct or defiance warrants a forfeiture. Our canvass of decisions of our own and sister courts reinforces our view that the state court order that Fischetti proceed without counsel was not an objectively unreasonable application of Supreme Court case law under the Sixth Amendment.

Id. at 152.

Applying the analysis and rationale of Fischetti to this case, we reach a similar conclusion. The precise issue presented to the state court in this case was whether a criminal defendant who has been duly notified of the date of his trial, who has been advised to obtain counsel in sufficient time to be ready for trial, and who appears on the scheduled date without counsel and with no reasonable excuse for his failure to have counsel present, forfeits his Sixth Amendment right to counsel.

Turning to the first prong of § 2254(d)(1), there is no Supreme Court precedent dealing with the forfeiture of counsel, and no prior decision of that Court involves facts “materially indistinguishable” from those presented here. Accordingly, the state court decision we review is not “contrary to ... clearly established” Supreme Court law.

With respect to whether the decision we review involves an unreasonable application of clearly established Supreme Court law, we emphasize, as did the Fischetti Court, that “we must use as our point of departure the specific holdings of the” Supreme Court. Id. at 151. It remains true that there are no Supreme Court decisions involving forfeiture of the right to counsel and a fortiori no decisions providing any clear guidance as to the “standard to be applied before [it can be concluded that] a defendant’s misconduct warrants a forfeiture.” Id. at 152. It necessarily follows that the state court’s decision here was not an unreasonable application of Supreme Court precedent.

While, as we have noted, court of appeals precedent is irrelevant to the ultimate issue before us, we note that here, as in Fischetti, a review of those cases provides a basis for the view taken by the state court in this case. We explained in Fischetti, for example:

In United States v. Goldberg, 67 F.3d 1092 (3d Cir.1995), we explained that a defendant could lose the right to counsel by physically assaulting his attorney or (in the case of a financially able defendant) refusing to retain any counsel in the first place. We apply this rule of forfeiture not to punish defendants but to preserve the ability of courts to conduct trials.

❖ 4? ❖

Other circuits have also interpreted Supreme Court decisions to be consistent with forfeiture of the right to counsel. These cases have interpreted the law to require defendants to go to trial unrepresented when they have failed to hire counsel within a reasonable time, United States v. Bauer, 956 F.2d 693 (7th Cir.1992); United States v. Mitchell, 777 F.2d 248 (5th Cir.1985).

Id. at 146,152 (emphasis added).

Our colleague writing in dissent correctly observes that the “unreasonable application” segment of § 2254(d)(1) authorizes habeas relief from a state judgment “if, under clearly established [Supreme Court] law, the state court was unreasonable in refusing to extend a governing legal principle to a context in which the principle should have controlled” or unreasonably extended that principle to a situation in which it should not have controlled. Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (plurality opinion). Our colleague finds this significant because, in his view, Wilkerson did not engage in any “serious misconduct” or, more specifically, because ‘Wilkerson did not act in a way that our Supreme Court has held leads to a finding of forfeiture of constitutional rights generally or that the lower courts have subsequently held leads to a finding of forfeiture of the right to counsel specifically.” Dissenting Op. at 461.

The dissent’s analysis ignores the fact that the unreasonable extension doctrine still requires reference to a specific “legal principle from the Supreme Court.” Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002). No Supreme Court precedent exists to support the position that the type of “serious misconduct” described in the dissent is “necessary to find forfeiture of a constitutional right.” Dissenting Op. at 462. Indeed, our colleague concedes that no clear forfeiture standard can be found in Supreme Court precedent or in the decisions of lower appellate courts. Id. at 461. The dissent goes on, however, to express the belief that circuit court forfeiture decisions “contain common factors from which the principle can be gleaned that the federal appellate courts will not find a forfeiture absent a defendant’s defiant behavior ....” Id. (emphasis added).

Even if this Court could glean from federal circuit court precedents a serious misconduct forfeiture standard which does not encompass Wilkerson’s behavior in this case, that does not compel the conclusion that the state court’s forfeiture finding was an objectively unreasonable application of Supreme Court precedent under section 2254. Because no clear forfeiture standard has been articulated by the Supreme Court, it cannot be said that the state court in this case acted unreasonably when it found forfeiture, even though Wilkerson’s actions fell short of the sort of “extremely serious misconduct” that this Court found present in United States v. Leggett, 162 F.3d 237 (3d Cir.1998), and Goldberg, 67 F.3d at 1102. It is not sufficient to say that Wilkerson’s actions did not rise to the level of conduct that has constituted forfeiture in the past; the issue is whether the state court’s application of forfeiture to Wilkerson’s case was precluded by Supreme Court precedent. In this regard, we re-state our position in Fischet-ti that the Supreme Court’s holdings in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), and Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), provide state courts with a “basis to conclude” that certain obstructive conduct by a defendant may constitute a forfeiture of Sixth Amendment protections. Fischetti, 384 F.3d at 151.

As we stressed in Fischetti, “forfeiture and voluntary waiver are conceptually separate,” and the dissent’s waiver precedents are beside the point. Allen and Taylor are of interest to the extent they recognize that a criminal defendant may forfeit other important constitutional rights by engaging in conduct that has the potential of “prevent[ing] the trial from going forward.” Fischetti, 384 F.3d at 151. But the issue and facts involved there are no closer to those here than to those in Fis-chetti. They certainly do not compel a conclusion that a trial judge must abort a scheduled trial under the facts presented here.

With respect to whether or not the state court could reasonably apply the Supreme Court’s forfeiture analysis from Allen and Taylor to Wilkerson’s case, we perceive no material difference between the potential for trial disruption presented here and in Fischetti. Whether there is such a material difference might present a litigable issue — one on which reasonable minds could differ, but that would be relevant only to whether our panel is bound by Fischetti. It has nothing to do with whether the state court’s decision was an unreasonable application of established Supreme Court law.

III.

The judgment of the District Court will be affirmed.

1 . At the end of the day, AEDPA “confines the authorities on which federal courts may rely” in a habeas case to Supreme Court decisions. Lewis v. Johnson, 359 F.3d 646, 652 (3d Cir. 2004); see also Dunn v. Colleran, 247 F.3d 450, 457 (3d Cir.2001); Hameen v. Delaware, 212 F.3d 226, 234-43 (3d Cir.2000) (analyzing Supreme Court cases).

2 . See, e.g., Martinez v. California, 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).