Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 CV 1014-Rudolph T. Randa, Chief Judge.
The opinion of the court was delivered by: Evans, Circuit Judge
ARGUED SEPTEMBER 21, 2005
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
Telephone conversations with clients are a big part of what lawyers do. But can using a telephone while representing a client go too far? This habeas case presents the novel-but, in the endless quest for efficiency, perhaps inevitable-question: What does the law require when a client on the other end of a telephone hookup with his lawyer is standing before a judge, about to relinquish a bevy of important constitutional rights?
Joseph Van Patten was charged with one count of first degree intentional homicide following a fatal shooting in Shawano County, Wisconsin. One day in September 1995, while he was in jail awaiting trial, Van Patten got a call from his attorney, James B. Connell. Connell informed Van Patten that he would shortly be transported to court for a change of plea hearing. Under an oral agreement Connell had reached with the prosecutor, Van Patten was to enter a plea of no contest to a charge of first degree reckless homicide, with a penalty enhancement for committing the offense while using a dangerous weapon. (Van Patten would later testify that he had some questions about the arrangement which he had been unable to raise in the phone call with Connell.)
At the court hearing later that day, Connell "appeared" via speakerphone. Apparently this was due not to any last-minute problem, but simply for the convenience of everyone's schedules. Connell would later explain that he had appearances in two other counties that day; that the court was holding time for Van Patten's trial; that witnesses were waiting to know whether they would be needed; and that "everyone wanted to get this matter concluded." No one asked Van Patten whether he objected to his attorney's absence from the hearing, or whether he would prefer to reschedule the hearing to a time when his attorney could appear in person.
As the participants huddled around a speakerphone on the judge's bench, the judge encouraged Van Patten to "take all the time you need to confer with your attorney, and we can perhaps get him on the line in a private place so you could talk to him privately also." The judge then informed Van Patten that "[e]verything here is going to be on the record." The court quizzed Van Patten to be sure he understood what was happening at the hearing, including the constitutional guarantees-his rights to a speedy and public trial, to trial by jury, to confront accusers, to compel witnesses, and to not serve as a witness against himself-he was about to forfeit by pleading no contest. Van Patten's only extended comments related to whether he would be allowed a visit in jail from his daughter. Satisfied that everything was in order, the judge accepted the plea. Two months later, Van Patten was sentenced to a maximum term of 25 years in prison.
After retaining different counsel, Van Patten moved to withdraw his plea, arguing that Connell's failure to appear in person at the change of plea hearing violated his Sixth Amendment right to counsel. At the hearing on that motion, Van Patten testified that he had wanted a jury trial but felt "forced" to enter a no-contest plea because Connell told him if he didn't, the prosecutor would "make sure I would die in prison." Asked whether at any point during the hearing he asked to speak to his attorney on a private line, Van Patten said no, because Connell told him to "just say yes and just go along with everything." Van Patten testified that he would not have entered his plea if his attorney had been present at the hearing. The court denied Van Patten's post-conviction motion. Claiming that he was denied his right to the assistance of counsel, Van Patten embarked on an odyssey of appellate proceedings.
The Wisconsin Court of Appeals analyzed Van Patten's Sixth Amendment claim as a complaint of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show that his counsel's performance fell below an objective standard of reasonableness. Id. at 688. The court's review of the attorney's performance must be "highly deferential[,] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Under Strickland's second prong, the defendant also bears the burden of showing prejudice-that is, a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. The state appellate court said its review of the plea hearing transcript "neither indicates any deficiency in the plea colloquy, nor suggests that Van Patten's attorney's participation by telephone interfered in any way with his ability to communicate with his attorney about his plea." Accordingly, the appellate court rejected Van Patten's right-to-counsel claim.*fn1 The Wisconsin Supreme Court denied further review.
Van Patten then brought his Sixth Amendment claim to the district court as a habeas petition under 28 U.S.C. § 2254. In his recommendation to the district court, the magistrate judge found that Connell's telephonic appearance at the plea hearing had been "effective under Strickland," but "ineffective" under United States v. Cronic, 466 U.S. 648 (1984).
Cronic, which was decided on the same day as Strickland, recognizes several circumstances where the two-pronged Strickland test does not apply, circumstances "so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. at 658. Cronic, not Strickland, applies where there has been a "complete denial of counsel"; where counsel has been "prevented from assisting the accused during a critical stage" of the prosecution; where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"; or under circumstances where "although counsel is available . . . the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the [proceeding]." Id. at 659-60 and 659 n.25. See also Hollenback v. United States, 987 F.2d 1272, 1275 (7th Cir. 1993) (recognizing Cronic as an "exception" to Strickland's two-part test). A Cronic violation can occur where the denial of assistance of counsel was either "[a]ctual or constructive." Strickland, 466 U.S. at 692. See also Siverson v. O'Leary, 764 F.2d 1208, 1217 (7th Cir. 1985). Although he identified Cronic as the law governing Van Patten's habeas petition, the magistrate judge believed-and recommended to the district judge (incorrectly, as we will explain)-that the violation could be considered "harmless error."
Acting on the recommendation, the district court made two holdings that are difficult to reconcile. It endorsed the magistrate judge's analysis that counsel's failure to appear in person, albeit "harmless error," was "a violation of Van Patten's Sixth Amendment right to effective assistance of counsel" under Cronic. But the district court also concluded that the state appellate court had "properly identified and applied Strickland," rather than Cronic, as the appropriate legal framework. (Under Strickland, it seems clear Van Patten would have no viable claim.)
Thus, we must resolve two questions: Did the state court err in applying Strickland, rather than Cronic, when it decided Van Patten's Sixth Amendment claim? If the state court did apply the wrong law and Van Patten was denied assistance of counsel under Cronic, did the district court err in applying a harmless-error analysis to defense counsel's failure to appear in person at the plea hearing? We conclude that the answer to both questions is yes.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may grant habeas relief from a state court conviction if it finds the state court's adjudication of a constitutional claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Supreme Court]." ...