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Schmidt v. Foster

United States Court of Appeals, Seventh Circuit

May 29, 2018

Scott Schmidt, Petitioner-Appellant,
Brian Foster, Respondent-Appellee.

          Argued January 4, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CV-1150 Charles N. Clevert, Jr., Judge.

          Before Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.


         Petitioner Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He admitted the murder but tried to rely on the state-law defense of "adequate provocation" to mitigate the crime from first- to second-degree homicide. A state trial judge denied Schmidt the assistance of his counsel while the judge questioned Schmidt in a pretrial hearing on that substantive issue. Under law clearly established by the Supreme Court of the United States, the evidentiary hearing on that substantive issue was a "critical stage" of Schmidt's prosecution. By denying Schmidt the assistance of counsel in that critical stage, the state court violated his Sixth Amendment right to counsel.

         The Sixth Amendment guarantees the accused in a criminal case "the Assistance of Counsel for his defence." Because "an unaided layman" has "little skill in arguing the law or in coping with an intricate procedural system, " the Supreme Court has long held that the right to counsel extends beyond the trial itself. United States v. Ash, 413 U.S. 300, 307 (1973). Criminal prosecutions involve "critical confrontations" before trial "where the results might well settle the accused's fate." United States v. Wade, 388 U.S. 218, 224 (1967). The Sixth Amendment therefore guarantees defendants "the guiding hand of counsel" at all "'critical' stages of the proceedings." Id. at 224-25, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932).

         Since Schmidt admitted having murdered his wife, the only substantive issue in the prosecution was whether he acted under "adequate provocation, " which in Wisconsin would mitigate homicide from first to second degree. The prosecution opposed Schmidt's intended defense, arguing before trial that he had failed to offer "some evidence" of provocation, which would be sufficient to shift the burden of persuasion to the state to disprove provocation beyond a reasonable doubt. The trial court chose to address this critical substantive issue before trial.

         After a hearing where counsel debated the defense's written summary of evidence of provocation, the trial court held an unprecedented ex parte, in camera hearing. The judge allowed Schmidt's counsel to attend the hearing but, critically, did not allow him to speak or participate. Instead, the judge questioned Schmidt directly. After listening to Schmidt's answers, the judge ruled that Schmidt could not present the adequate provocation defense at trial. A jury convicted Schmidt of first-degree intentional homicide, and he was sentenced to life in prison.

         Schmidt sought post-conviction relief, and the Wisconsin Court of Appeals held that the trial court did not violate Schmidt's Sixth Amendment right to counsel. That decision was an unreasonable application of clearly established Supreme Court precedent guaranteeing counsel at all critical stages of criminal proceedings, including whenever "potential substantial prejudice to defendant's rights inheres in the particular confrontation." Wade, 388 U.S. at 227. Schmidt therefore meets the stringent standards for habeas corpus relief under 28 U.S.C. § 2254(d)(1).[1]

         I. Factual & Procedural Background

         In April 2009, Schmidt shot his wife, Kelly Wing-Schmidt, seven times. She died in their driveway. When police officers arrived, they found Schmidt standing by her body. He quickly admitted he had shot her.

         A. The Trial Court Proceedings

         Wisconsin charged Schmidt with first-degree intentional homicide. Schmidt never denied shooting and killing Kelly, but he intended to argue at trial that he acted with "adequate provocation." In Wisconsin, adequate provocation is an affirmative defense that mitigates intentional homicide from first to second degree for defendants who "lack self-control completely at the time of causing death." Wis.Stat. §§ 939.44; 940.01(2)(a). To be "adequate, " the provocation must be "sufficient to cause complete lack of self-control in an ordinarily constituted person." § 939.44. If the defendant can produce "some" evidence supporting adequate provocation before trial, then the defendant may introduce evidence of the defense at trial. State v. Schmidt, 824 N.W.2d 839, 843 (Wis. App. 2012), citing State v. Head, 648 N.W.2d 413, 439 (Wis. 2002). The prosecution must then disprove the defense beyond a reasonable doubt. Schmidt, 824 N.W.2d at 843, citing Head, 648 N.W.2d at 437-38.

         Schmidt filed a pretrial motion disclosing that he would present evidence of provocation through "false allegations, controlling behaviors, threats, isolation, unfaithfulness, verbal abuse and arguments." Schmidt planned to present evidence that his wife had abused him emotionally and physically throughout their marriage. He would have testified that right before the shooting, he and Kelly had a heated argument in which Kelly taunted him about an affair he had just discovered, told him their children were not actually his, and threatened to make up stories so that he would never see their children again. According to Schmidt, he lost self-control and shot his wife. The State objected to the evidence, arguing that Schmidt's disclosure lacked specificity and that the circumstances did not support an adequate provocation defense. The State also argued that Schmidt did not clarify the timeframe covered by his proposed evidence and that evidence dating back too far would be irrelevant and prejudicial.

         The court acknowledged the State's concerns. Over Schmidt's objection, the court scheduled a hearing to determine whether Schmidt had met the some-evidence standard and could present the defense at trial. Before the hearing, Schmidt submitted two documents: an offer of proof summarizing the testimony of twenty-nine potential witnesses and a legal analysis of the provocation defense with a timeline of events from 2004 through the 2009 shooting.

         The evidentiary hearing began in court with Schmidt, his lawyer, and the prosecutor present. The judge was not prepared to decide on the paper submissions alone whether Schmidt could meet the "some evidence" threshold for the provocation defense. Schmidt's lawyer objected to having to expose his defense evidence before trial. The judge decided that he should question Schmidt ex parte to assess the provocation defense. Schmidt's counsel agreed that if the court intended to question Schmidt, it should do so in chambers outside of the prosecutor's presence. The court then proposed to the prosecutor that Schmidt's counsel would attend the hearing in chambers, but would "just be present" and "not saying anything." The prosecutor agreed. Schmidt's counsel did not object, but nobody asked Schmidt if he was willing to go forward in this hearing, so critical to his fate, without the assistance of his lawyer.

          The trial judge, court reporter, Schmidt, and Schmidt's counsel proceeded to the judge's chambers. The judge stated that Schmidt "appears in person" and that "his attorney is also present but is not participating in the hearing." The court then asked Schmidt an open-ended question about what was on his mind when he shot Kelly. Schmidt gave the first of what would be several rambling narrative responses:

The day I went over was April 17th. I hadn't slept in at least a week, week-and-a-half. And I-it was like two days before that, I believe the 14th of April, the 14th or 15th of April I think it was, that I found an e-mail on my work computer from a-of a reservation for my wife and a guy that she supposedly was a friend with that worked for Gold Cross Ambulance. And I found that when I was at the fire station. I knew of him, up until that point, that they were friends.
Um, I had been out of the house for a couple of weeks. And I walked there. I went to the fire station, and I walked up to the house, because I knew there were some issues with, um, Kelly had threatened to take-these aren't my f'ing kids, that if she saw me at the house that she didn't want-I wasn't going to be part of the kids' lives anymore, our two youngest children. I just had a feeling that she'd probably call the cops if I pulled in the driveway. So I parked at the station, Fire Station 6, over on Lightning, and I walked to the house.
Actually, my main goal was, um, I had a job to do. I was going to build a house for a retired battalion chief up in Door County. And all my tools, my job trailer, and everything was at our house on JJ on Edgewood. I was at the time staying out at the lake-the lake house that I had- had owned prior to us being married in Stock-bridge. And there's-I didn't have any heat, slept on the couch, there was no blankets. I mean, it was-there were no dishes. I had-everything was-the house was empty. Gas was actually shut off because we-instead of paying the bills there, I wanted to make sure the bills were paid where the kids and Kelly were at … .

         That first answer continued for fourteen transcript pages. Thus began what the Wisconsin Court of Appeals called a "rambling narrative" that spans thirty-five transcript pages. Schmidt, 824 N.W.2d at 847. The trial court asked Schmidt the same open-ended question about his mental state six times. Each time Schmidt's response was unfocused and confused with irrelevant details.

         Near the end of the questioning, the judge took a short break for a telephone call. Schmidt's lawyer asked if he could talk to Schmidt. The judge responded that they should limit discussion to reviewing the written offer of proof. After the break, the judge asked Schmidt a few more questions before ending the hearing. Later that day, the court orally announced that "the circumstances that led to the death of Kelly Wing did not involve a provocation" and denied Schmidt's motion to present the defense at trial, rejecting it conclusively.

         B. Post-conviction Processes

         A jury convicted Schmidt of first-degree intentional homicide.[2] Schmidt moved for a new trial, arguing that he had been denied his Sixth Amendment right to counsel and his Sixth and Fourteenth Amendment right to present a defense. The trial court denied the motion, concluding that Schmidt had not met his burden of production to present the adequate provocation defense. The trial court also concluded that Schmidt was not denied counsel at the ex parte hearing because his counsel submitted the written offer of proof, made an oral argument, and conferred with Schmidt during the recess for the judge's telephone call.

         Schmidt appealed, and the Wisconsin Court of Appeals affirmed. The Court of Appeals found that Schmidt had not met the some-evidence standard, though the court called it "a close question." The court found that the ex parte interrogation was a valid exercise of the trial judge's discretion under state law. Turning to the Sixth Amendment question, the Court of Appeals found that the ex parte hearing was not a critical stage of the proceedings at which Schmidt was entitled to counsel. The court also reasoned that the hearing was not adversarial and that counsel was available to advise Schmidt. The court did not reach Schmidt's claim that the hearing violated his right to present a defense. The Wisconsin Supreme Court denied review.

         Schmidt then sought habeas corpus relief in federal court, raising the Sixth and Fourteenth Amendment claims. The district court denied relief on both. The district court considered de novo Schmidt's claim that he was denied the right to present a defense and concluded that the Wisconsin evidence law did not deprive him of that right because it protected a legitimate interest and was not arbitrary or disproportionate. The court next found that the deferential standard of review under the Antiterrorism and Effective Death Penalty Act (AEDPA) governed the Sixth Amendment claim. See 28 U.S.C. § 2254(d). The district court concluded that the Wisconsin Court of Appeals decision was not contrary to or an unreasonable application of Supreme Court precedent guaranteeing criminal defendants counsel at all critical stages. The district court therefore denied habeas relief but granted a certificate of appealability on both issues.

         II. Analysis

         The Wisconsin Court of Appeals rejected Schmidt's Sixth Amendment claim on the merits, and the facts are not disputed. Under AEDPA, a federal court therefore cannot grant a writ of habeas corpus on that claim unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's decision is unreasonable if it correctly identifies the controlling Supreme Court precedent but "unreasonably extends" that "legal principle" to "a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000). To obtain federal relief, Schmidt must show that the state court decision was not just incorrect but "objectively unreasonable." Id. at 409- 10; accord, e.g., Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). This standard is meant to be "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Even under this deferential standard, Schmidt is entitled to a writ of habeas corpus. The state-court decision was an objectively unreasonable application of Supreme Court decisions on the right to counsel. The ex parte hearing was a critical stage of the proceeding. Schmidt was guaranteed "the guiding hand of counsel" throughout it, see Powell, 287 U.S. at 69, but he did not have that guidance because of the judge's ground rules for his inquisition of Schmidt, barring his counsel from participating. Because we grant Schmidt's petition based on the violation of his right to counsel, we do not reach his claim that the trial court also denied his right to present a defense.

         A. "Critical Stage"

         The Sixth Amendment guarantees that in "all criminal prosecutions, the accused shall enjoy the right" to "have the Assistance of Counsel for his defence." The Supreme Court has long recognized that the right applies not only at trial but also at all "critical stages" of the adversary process. The first question in this case is the scope of the Supreme Court's precedents on what constitutes a "critical stage."

         A brief look at the history of the Sixth Amendment provides helpful context for understanding the scope of a defendant's right to counsel in pretrial proceedings. In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court explained:

The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in 'matters of law, ' and eschewing any responsibility for 'matters of fact.' The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction. Powell v. State of Alabama, 287 U.S. 45, 60-65; Note, 73 Yale L.J. 1000, 1030-1033 (1964). 'Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.' 73 Yale L.J., supra, at 1033-1034. This background is reflected in the scope given by our decisions to the Sixth Amendment's guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings. The guarantee reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.'

388 U.S. at 224-25 (footnotes omitted, emphasis added).

         The Court has identified two historical reasons for the right to counsel. First was the development of an "intricate procedural system." United States v. Ash, 413 U.S. 300, 307 (1973). As the Court explained:

A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. […] The Court frequently has interpreted the Sixth Amendment to assure that the 'guiding hand of counsel' is available to those in need of its assistance.

Id. at 307-08. Second was the development of the public prosecutor: "Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system." Id. at 308. "Thus, an additional motivation for the American rule" that a criminal defendant is entitled to counsel "was a desire to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official." Id. at 309. An uncounseled defendant could not be expected to argue his case, navigate the rules of evidence, or articulate his defenses with the same skill as an "expert adversary, " the prosecutor. Id. at 310.

         Over time, the same became true of various pretrial steps in prosecutions. With increasing frequency, defendants confronted issues before trial that previously would have surfaced at trial-issues like articulating defenses or disputing the admissibility of evidence. With the history of the Sixth Amendment in mind, the Court has repeatedly applied the right to counsel to these critical confrontations "that might appropriately be considered to be parts of the trial itself, " that is, steps when "the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." Id. at 310. The Court has called these confrontations "critical stages." See, e.g., Wade, 388 U.S. at 224; Hamilton v. Alabama, 368 U.S. 52, 53-54 (1961).

         It is clearly established that criminal defendants are entitled to counsel at all critical stages of the criminal process, and the case law on which stages are critical is extensive. The State relies here on Carey v. Musladin, 549 U.S. 70 (2006), which explained that "clearly established Federal law" under § 2254(d)(1) includes only the Supreme Court's holdings, not its dicta. Id. at 74. In Carey, the Court rejected a Ninth Circuit decision for reading Supreme Court precedent at too high a level of generality. Id. at 75-76. Wisconsin uses Carey to argue that no clearly established federal law applies to this case because the Supreme Court has not held that a hearing like the extraordinary ex parte, in camera hearing here is a critical stage.

         AEDPA deference does not go so far. A few months after deciding Carey, the Court clarified that AEDPA does not require "federal courts to wait for some nearly identical factual pattern" before granting relief. Panetti v. Quarterman, 551 U.S. 930, 953 (2007), quoting Carey, 549 U.S. at 81 (Kennedy, J., con- curring in judgment); see also Williams, 529 U.S. at 407 (holding that state courts can unreasonably apply clearly established federal law to facts the Supreme Court has not considered). "Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts ...

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