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Carlson v. Jess

May 19, 2008


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 C 481-Lynn Adelman, Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.


Before KANNE, EVANS, and SYKES, Circuit Judges.

After a one-day jury trial, Matthew Carlson was convicted of first-degree sexual assault of a child and sentenced to 55 years in a Wisconsin state prison. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the state trial court's denial of his motion to substitute counsel and for a continuance violated his Sixth Amendment right to counsel of choice and his Fourteenth Amendment right to due process. He also maintains that the state court of appeals' decision affirming the trial court's judgment was unreasonable. The district court (Judge Lynn Adelman) agreed with Carlson and granted his petition in a comprehensive opinion. Carlson v. Jess, 507 F. Supp. 2d 968 (E.D. Wis. 2007). The State now appeals.

Back in 1996, Carlson was convicted of one count of sexual assault of a boy under the age of 13. At that time, the complainant here, we'll call him "Gino," was 9 years old and a friend of Carlson's stepson. Upon hearing of the conviction, Gino's grandparents asked him whether Carlson had ever assaulted him. Gino denied any improper behavior on the part of Carlson.

Six years later, in 2002 when Gino was 15 years old, he alleged that Carlson sexually assaulted him in 1996 and 1998. Gino initially complained to the staff of Raw-hide Boys Ranch, where he then resided. Soon thereafter,*fn1 the Ozaukee County district attorney charged Carlson

with several counts of sexually assaulting Gino. Carlson hired attorney Randall Kaiser to represent him. At Carlson's May 20, 2002, arraignment, the trial court set a trial date of August 27, 2002.*fn2 The parties agreed that the trial would take, at most, two days to complete. Carlson remained in jail from the time of his arrest until his eventual trial.

In the weeks leading up to the trial, Carlson requested two brief continuances, one for additional preparation time and one to permit Kaiser's co-counsel to assist him at trial. The trial judge denied both requests, citing his calendar and the fact that the complainant was a juvenile. In the meantime, Carlson lost confidence in Kaiser's ability to represent him. On August 17, ten days before the scheduled start of the trial, Carlson notified Kaiser that he had hired another attorney, Robin Shellow, to replace him. Two days later, Kaiser moved to with-draw as counsel. On August 23, Carlson, with Shellow's help, moved to substitute Shellow for Kaiser as his counsel, conditioned upon an adjournment so that Shellow could prepare for trial. In support of the motion, Ms. Shellow submitted a detailed explanation of the additional investigation she wanted to conduct before trial.

The trial judge, however, did not sit during the week of August 19 and thus did not promptly address Kaiser's motion to withdraw or Carlson's motion for substitution and a continuance. On August 26, the day before the trial was scheduled to begin, the judge returned to the bench and held a hearing on the motions. There, Kaiser stated:

I am in a very tough position I think if I am not allowed to withdraw. As I said, our communication has completely broken down. We have differences of opinions, and I know they don't feel confident, he and his family. I think it's better for everyone if I withdraw.

I don't feel that the state is prejudiced by allowing me to withdraw. It's my understanding that they really only have one citizen witness. This is a case that allegedly occurred approximately six years ago and was not charged until April of this year. So I don't think Attorney Shellow or I-I don't want to speak for her, but I don't think we are requesting a long adjournment. This is the first request that Mr. Carlson has made for a new attorney.

Kaiser also explained that Carlson was not seeking to delay the proceedings unnecessarily and reminded the court that Carlson was and would remain in custody during a continuance. The prosecutor opposed Kaiser's request because Shellow "ha[d] already indicated in papers that she wouldn't be able to proceed tomorrow" and because the complainant was a child.

The trial judge conceded that "the defendant has a right to counsel," but stated:

I think here there are paramount issues. And the first issue is the orderly administration of this Court. I said last week or on the 14th that it would be months before this case got back on the trial calendar. And these late motions to withdraw, I am not inclined to grant it-in fact, I am not going to grant the motion to withdraw. This case is going ...

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