Argued: October 1, 2014.
As Corrected May 4, 2015.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-C-0161 -- Lynn Adelman, Judge.
For Joel Rhodes, Petitioner - Appellee: Brian P. Mullins, Attorney, Burke & Mullins, Milwaukee, WI.
For Michael A. Dittmann, Respondent - Appellant: Daniel J. O'Brien, Assistant Attorney General, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
Wood, Chief Judge.
Accused of kidnapping and aggravated battery, Joel Rhodes had trouble deciding whether to take advantage of his constitutional right to counsel. After going through several lawyers, he convinced the state court that he wanted to represent himself. But shortly before his trial began in May 2007, he informed the court that he had changed his mind and needed more time for retained counsel to prepare. The court refused to go along; it informed Rhodes that his request was untimely and that it smacked of gamesmanship. A jury convicted Rhodes, the Wisconsin Court of Appeals affirmed, and the state supreme court denied review. Rhodes then turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. The district court ordered the writ to be issued, but its ruling was stayed pending appeal. We find neither of the state courts' reasons for rejecting Rhodes's last-minute request for counsel to be unreasonable, and thus we conclude that the district court's judgment is inconsistent with the deferential standard of review that applies here. We therefore reverse.
This litigation stretches all the way back to 2002, when Rhodes was charged by state prosecutors with two counts of kidnapping. He retained Peter Kovac as his trial counsel. Kovac represented Rhodes well: a jury acquitted him on one count, while a different jury convicted him on the other count. Rhodes appealed the conviction, primarily on the ground that Kovac had rendered ineffective assistance, but the Wisconsin Court of Appeals (upon the state's confession of error) reversed and remanded based on a problem with the jury.
On remand, the state added a charge of aggravated battery to the information. The court appointed a public defender, Richard Kaiser, to represent Rhodes. On March 13, 2007, nearly two months before the trial was scheduled to begin, Kaiser moved to end his representation of Rhodes, because Rhodes wanted to represent himself. The trial court held a hearing on Kaiser's motion on April 2, during which it warned Rhodes about the dangers of self-representation. It did not rule on the motion that day, however, in part because the judge wanted Rhodes and Kaiser to have more time to attempt to resolve their differences.
The hearing resumed on April 6, at which point the judge had an extensive exchange with Rhodes about his decision to proceed pro se. After the judge provided Rhodes and his attorney with a waiver form, Rhodes spoke again. He told the judge that he " was in the process of hiring Attorney Kovac but I don't know what happened," and noted that Kovac was in the courtroom. Rhodes said that he did ...