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Challenge to waiver of appellate counsel can’t overcome “stiff” AEDPA burden

Gregory Jean-Paul v. Timonty Douma, 7th Circuit Court of Appeals No. 14-3088, 12/31/15

The Wisconsin Court of Appeals reasonably concluded that Jean-Paul validly waived his right to appellate counsel based on the waiver form he signed and his correspondence with his appellate lawyer.

Jean-Paul initially told his appellate lawyer he wanted to represent himself, but then changed his mind and said he wanted counsel to file a no-merit report under § 809.32. Before counsel filed the no-merit report, Jean-Paul changed his mind again and asked his lawyer to withdraw. His lawyer provided a written form that explained the perils of self-representation and declared Jean-Paul understood and was electing to proceed pro se (reproduced in the slip op. at 3). Jean-Paul signed the form, and the lawyer attached it to his motion to withdraw. The court of appeals granted the motion to withdraw.

After several unsuccessful pro se challenges to his conviction, Jean-Paul filed an unsuccessful state habeas petition alleging his waiver of appellate counsel wasn’t knowing and intelligent because he can’t read or write, he had to rely on a jail house lawyer for assistance, and he believed the form he signed required counsel to file a no-merit report. He then made the same allegations in a federal habeas petition, but he can’t meet the “stiff burden” imposed by AEDPA:

The state court’s decision was not based on an unreasonable application of clearly established law. The Supreme Court has held that waiver of the right to counsel must be knowing and intelligent, and has also explained that such a determination is case specific. See Iowa v. Tovar, 541 U.S. 77, 88 (2004); …. But as this court recognized in Speights v. Frank, 361 F.3d 962, 964–65 (7th Cir. 2004), the Court has also held that the inquiry into the validity of a waiver depends on the stage of the proceedings at which the waiver occurs. . A waiver of counsel before trial may require a “give-and-take between the accused and someone trying to educate him about counsel’s benefits.” Speights, 361 F.3d at 964–65 (citing Tovar, 541 U.S. at 90). But a waiver of counsel on appeal need not be accompanied by this kind of colloquy because “the major complexities, choices, and risks are past.” Id. at 965. Instead, “straightforward assent” is enough to waive the right to counsel on appeal. Id.

(Slip op. at 7-8).

The state court reasonably concluded Jean-Paul’s assent is established by the record, despite his two arguments to the contrary. First, he claims his case is like Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001), because, as in that case, the written information from counsel didn’t inform him that the court of appeals would review a no-merit report. The court rejects this argument because there’s other evidence in the record (in particular, correspondence between Jean-Paul and his lawyer) showing he was told how the no-merit process works. Second, Jean-Paul claims the Wisconsin appellate court made unreasonable factual findings because of the evidence about his illiteracy, his vacillation about self-representation, and his confusion about the no-merit deadline. Again, the “stiff burden” under AEDPA dooms his argument:

A state court’s factual finding is unreasonable only if it “ignores the clear and convincing weight of the evidence.” Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013) (internal quotation marks and citations omitted). Here, the evidence reasonably supports the state appellate court’s factual findings. First, the “vacillation” reflected in the letters shows only that Jean-Paul reconsidered whether to proceed pro se. Jean-Paul points to no case suggesting that when a defendant is initially uncertain about waiving appellate counsel, a later-signed waiver is presumptively suspect.

Second, the confusion about deadlines is irrelevant. It may suggest uncertainty about when he needed to sign a waiver, but not whether to do so. Finally, the state appellate court reasonably discounted the evidence that Jean-Paul cannot read or write. His inability to read (assuming that’s true) does not necessarily imply an inability to understand what is read to him, and Jean-Paul hasn’t claimed that the waiver wasn’t read to him or that he did not understand it. ….

(Slip op. at 10).

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