Speights, Jael K. v. Frank, Matthew J. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2646
JAEL K. SPEIGHTS,
Petitioner-Appellant,
v.
MATTHEW J. FRANK, Secretary, Wisconsin
Department of Corrections,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-0057-C—Barbara B. Crabb, Chief Judge.
____________
SUBMITTED MARCH 4, 2004—DECIDED MARCH 19, 2004
____________
Before EASTERBROOK, MANION, and EVANS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Jael Speights was con-
victed 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
2 No. 03-2646
(1988). Cf. Anders v. California, 386 U.S. 738 (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 Appel-
late 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
No. 03-2646 3
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 se-
lected the third option in order to block Alesia from explain-
ing 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 appel-
late 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 meritori-
ous. 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
4 No. 03-2646
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 intel-
ligent. See Johnson v. Zerbst, 304 U.S. 458 (1938); Faretta
v. California, 422 U.S. 806, 835 (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
they do not tell the suspect what counsel could do for him
or what risks an uncounseled interrogation poses) and
consents to search could not be made without the sort of
advice that Schneckloth v. Bustamonte, 412 U.S. 218 (1973),
held to be unnecessary. See also Ohio v. Robinette, 519 U.S.
33 (1996). What one can say is that waiver of the right to
the assistance of counsel at trial, the stage of a criminal
prosecution most difficult for a layperson to navigate, may
require an oral inquiry to ensure that the defendant chooses
with knowledge of his entitlements and his eyes open to the
dangers of self-representation. See Iowa v. Tovar, No.
02-1541 (U.S. Mar. 8, 2004), slip op. 9-10; United States v.
Hill, 252 F.3d 919, 928 (7th Cir. 2001). The Supreme Court
has never held that waivers of counsel at any stage of the
proceedings other than trial require such a give-and-take
between the accused and someone trying to educate him
about counsel’s benefits— and in Tovar the Court held that
the Constitution does not require warnings along these
lines when the accused wants to plead guilty without legal
assistance. It is enough, Tovar held, if the accused knows of
his right to counsel and the plea itself is voluntary.
Much the same may be said about waivers of legal
assistance in prosecuting an appeal. Once the trial is over,
the major complexities, choices, and risks are past. That
is one reason why, the Court held in Martinez v. Court
of Appeal, 528 U.S. 152 (2000), the defendant no longer has
No. 03-2646 5
an unqualified right to act as his own lawyer. When a state
allows defendants to represent themselves on appeal, how-
ever, it may permit them to decide without the rigmarole
that attends waiver of counsel for trial. Just as a simple
consent to proceed without counsel suffices during custodial
interrogation, so a straightforward assent is enough on
appeal. So, at least, a state may think without contradicting
any decision of the Supreme Court or acting unreason-
ably—and, unless the state judiciary does one or the other,
collateral relief is unavailable. 28 U.S.C. §2254(d). Tovar
strongly implies that the Supreme Court is not likely to
extend, beyond the trial itself, any requirement that a
defendant be informed about the benefits of counsel and
risks of waiver. See also Patterson v. Illinois, 487 U.S. 285,
298-99 (1988). If such an extension (or a requirement that
counsel explain the no-merit procedure clearly enough for
a client to grasp) to occur nonetheless, that must happen on
direct review; given §2254(d) a collateral attack is not the
occasion for the development of new constitutional rules.
Speights, who bears the burden of persuasion on col-
lateral attack, see Tovar, slip op. 13-14, does not contend
that he misunderstood the choices offered. He is literate in
English and not afflicted by any mental disease. Appointed
counsel made it clear that, if Speights so requested (or even
if he did nothing), she would proceed with a no-merit report,
satisfying her obligations under McCoy. Armed with this
knowledge, Speights dismissed his lawyer, prevented the
filing of the no-merit report, and undertook to represent
himself. He bungled the job. Wisconsin is not obliged by the
Constitution to give him a second bite at the apple.
AFFIRMED
6 No. 03-2646
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-19-04