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Federal district court grants habeas relief because Wisconsin Court of Appeals’ unreasonably determined facts in appeal addressing defendant’s request to reinstate right to counsel

Joel D. Rhodes v. Michael Meisner, No. 13-C-0161 (E.D. Wis. Mar. 12, 2014)

Judge Lynn Adelman of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Joel Rhodes, concluding that in State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, the Wisconsin Court of Appeals unreasonably determined that the trial court properly exercised his discretion in denying Rhodes’s request to reinstate his right to counsel on the eve of trial.

As explained in our post on the court of appeals decision, Rhodes waived his right to counsel several weeks before trial, though he also expressed interest in retaining a lawyer (Kovac) who had represented him in the past. On the first day of trial Rhodes asked the trial court to reinstate his right to counsel and requested an adjournment so Kovac could represent him. The trial court denied the request, concluding Rhodes was engaging in “gamesmanship.” The court of appeals concluded Rhodes’s initial waiver of counsel was valid and that the trial court properly exercised its discretion in denying Rhodes’s request to reinstate his right to counsel.

Judge Adelman assumes that Rhodes’s initial waiver of counsel was valid, and addresses only the determination that the trial court properly exercised its discretion in denying Rhodes’s request for counsel on the morning of trial. After concluding the court of appeals applied the proper legal standard (as subsequently established by Marshall v. Rodgers, 569 U.S. __, 133 S. Ct. 1446 (2013) (per curiam)) (slip op. at 20-21), Judge Adelman holds the court of appeals unreasonably determined the facts relating to Rhodes’s request for counsel. Specifically, the court of appeals held Rhodes made three “mutually exclusive requests” that imposed “impossible duties on the trial court.” 337 Wis. 2d 594, ¶40. Judge Adelman rejects this reasoning:

…[T]he record contains absolutely no support for the conclusion that Rhodes had made mutually exclusive requests. Rather, the record is clear that Rhodes had made alternative and consistent requests, which the trial court addressed on the first morning of trial: First, Rhodes asked the trial court to allow Kovac to represent him. When the trial court denied that request, Rhodes, now intending to represent himself at trial, raised an issue he had been having with accessing a recorded telephone conversation he intended to use at trial. … After the court dealt with his request for an adjournment [to allow him access to that recording], Rhodes raised the question of whether Kovac could serve as his stand-by counsel. The court denied that request. … Thus, Rhodes did not make mutually exclusive request or try to have the trial court do the impossible in an effort to obstruct the orderly administration of justice. He made three alternative and consistent requests, all of which the court denied. The court of appeals’s contrary finding constituted an unreasonable determination of the facts. See Carlson v. Jess, 526 F.3d 1018, 1027 (7th Cir. 2008) (state court’s factual finding is unreasonable when there is “nothing to back it up”). (Slip op. at 22-23).

Judge Adelman acknowledges the trial court could have properly exercised its discretion by denying Rhodes’s request “solely because it was untimely”–made as it was on the morning of trial. (Slip op. at 24). But the trial court didn’t base its decision on untimeliness alone; it also cited Rhodes’s “gamesmanship.” Because the second reason was based on a clearly erroneous factual finding, the decision constiutes an erroneous exercise of discretion:

When a court reviews for abuse of discretion, it reviews a judge’s reasoning process, not merely the outcome produced by that reasoning process. … The mere fact that the outcome–the bottom line–reached by the judge is within the range of permissible outcomes is not sufficient to allow a reviewing court to uphold it. This is especially true in a case like this, in which any of the available outcomes (denying the request or granting it) could have been reasonably selected by the judge. In such cases, the reasons given by the judge for making the choice he did determine whether the choice may be upheld. Here, the judge gave two reasons for his choice (untimeliness and gamesmanship), one of those reasons (gamesmanship) was based on a clearly erroneous factual finding, and the judge gave no indication that he would have made the same choice if he had not made the clearly erroneous factual finding. Thus, the clearly erroneous factual finding tainted the judge’s reasoning process, with the result that the ultimate decision must be set aside as an abuse of discretion….

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