Robert L. Tatum v. Gary Boughton

Filing

Filed opinion of the court by Judge Wood. The judgment of the district court is REVERSED and and the case is REMANDED for issuance of the writ of habeas corpus, unless the state within 90 days of issuance of this court's mandate initiates steps to give Tatum a new trial. Diane P. Wood, Chief Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6815439-1] [6815439] [14-3343]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3343
ROBERT L. TATUM,
Petitioner-Appellant,
v.
BRIAN FOSTER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-C-1348 — Rudolph T. Randa, Judge.

____________________
ARGUED SEPTEMBER 8, 2016 — DECIDED JANUARY 31, 2017
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
WOOD, Chief Judge. Although the Sixth Amendment to the
U.S. Constitution gives every criminal defendant the right “to
have the Assistance of Counsel for his defence,” the Supreme
Court has recognized for more than 40 years that this does not
mean that counsel can be shoved down an unwilling defendant’s throat. At least since the Court decided Faretta v. California, 422 U.S. 806 (1975), the constitutional language has been

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understood as a personal right to decide how to defend oneself. “[T]he right to self-representation,” Faretta proclaimed,
“is thus necessarily implied by the structure of the Amendment.” 422 U.S. at 819. This is true despite the fact that it is
generally foolish for a person defending serious criminal
charges to proceed without counsel. Trial judges are entitled—indeed encouraged—to warn defendants of the risks
that attend self-representation. In the end, however, Faretta requires them to honor the defendant’s wishes, assuming that
the defendant is generally competent.
The present case raises the question whether the Wisconsin courts unreasonably applied Faretta when they refused to
allow Robert Tatum to represent himself. The state trial court
took this step after questioning Tatum not about his general
competence, but about his educational level and understanding of the legal system. Tatum’s conviction was upheld in the
state court system, and the district court denied his petition
for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
We reverse. Try as we might, we cannot reconcile the test the
Wisconsin state courts used in assessing Tatum’s right to selfrepresentation with the Supreme Court’s holding in Faretta.
I
Tatum faced the most serious charges possible: two counts
of first-degree intentional homicide by use of a dangerous
weapon, stemming from the shooting deaths of two of his
roommates, Kyle Ippoliti and Ruhim Abdella. The details of
the crimes can be found in the decision of the Wisconsin Court
of Appeals, State v. Tatum, 2013 WL 322647, No. 2011AP2439CR (Wis. Ct. App. Jan. 29, 2013), whose findings of fact are
presumed to be correct, 28 U.S.C. § 2254(e)(1). For present

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purposes, however, the critical facts relate to the course of
proceedings at trial.
After his arrest for the crimes, Tatum was arraigned. On
July 20, 2010, represented by his first attorney, he demanded
a speedy trial, and the case was set for a jury trial on November 29, 2010. On August 12, at Tatum’s request, counsel moved
to withdraw. The court granted the motion and vacated the
speedy trial demand because Tatum wanted a new lawyer.
His wish for a new attorney was granted. On September 23,
the second lawyer filed a motion to suppress evidence based
on the fact that Tatum’s car had been searched, and evidence
seized, without a warrant. Before the court was able to rule on
the motion, Lawyer 2 moved to withdraw, on the ground that
Tatum had shared confidential information with Tatum’s
mother, a material witness, and had thereby compromised the
lawyer’s position. Again the trial court granted the motion;
the trial date remained November 29, 2010.
The court next appointed a third lawyer, Dianne Erickson,
for Tatum. Erickson informed the court that she could not be
prepared for a November 29 trial, and so the court reset the
date for January 31, 2011. On January 18, Erickson requested
a competence evaluation for Tatum. The next day the court
held a hearing, at which it ordered that Tatum be evaluated
by the Department of Health Services. Evidently this was
done quickly; the parties returned to court on January 24 for
the return of the evaluation. The report was inconclusive, because the examining psychologist was unable to form an opinion about Tatum’s competence. The court then sent Tatum to
a state mental-health facility for an inpatient evaluation. Ta-

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tum protested mildly, saying that he would “rather just represent myself if [Erickson] finds that my competency is not up
to her standards.” The court responded with a “we’ll see.”
On February 24, inpatient evaluation in hand, the parties
returned to court. Dr. Laurence Trueman, the examining professional, found that Tatum was competent enough to understand the proceedings and assist in his defense, but that Tatum was likely to be “an extremely challenging defendant.”
The state court described what happened next:
At the same hearing, Tatum asked the trial court to
dismiss Attorney Erickson, stating that she was working with the State and not investigating his case in accordance with his standards, forcing him (Tatum) to investigate his case on his own. Tatum also acknowledged that he refused to meet with Attorney Erickson
out of frustration with counsel’s competence challenge.
The trial court asked Tatum whether he was requesting
a new attorney or asking the trial court to allow him to
represent himself. Tatum stated that he wished to represent himself. The trial court found Tatum competent
to stand trial; however, after engaging in a colloquy
with Tatum, denied his request to represent himself.
The trial court stated that Tatum’s limited education
would make it difficult for him to understand the difficulties and disadvantages of self-representation. The
trial court also refused to dismiss Attorney Erickson.
The trial was then calendared for a jury trial on April
4, 2011.
We need to look in greater detail at the colloquy to which
the state court referred. The critical part occurred at the conclusion of the February 24 hearing. Initially, the court said

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“Okay. I think he’s competent. I’ve got a report that says he is.
I’m satisfied based on my colloquy that he is knowingly, voluntarily and intelligently giving up his right to a hearing. …”
But the court made it clear that this was a finding that Tatum
was competent to stand trial. It then went on to discuss Tatum’s request to dismiss counsel:
The Court: … Mr. Tatum, do you want a new lawyer or do you want to represent yourself?
Tatum: I want to represent myself, Your Honor.
After further discussion, during which the judge expressed the concern that there was a total breakdown in communication between Tatum and Erickson, he returned to the
topic of self-representation:
The Court: I understand he wants to represent himself. What’s your educational background, sir?
Tatum: I’m self-educated. I went to public school up
until the tenth grade after which time I attended home
school and—
The Court: Have you got a GED or HSED?
Tatum: I would say I have the equivalent of an
HSED.
The Court: Do you have one?
Tatum: No, sir.
The Court: A formal one?
Tatum: No, sir. I can easily obtain it. That hasn’t
been my main goal. My main goal when it comes down
to getting paper to prove it, I mean that’s less of a goal
for me at least at this point in my life, but I’ve been

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studying as far as the statutes, Wisconsin statute, studying representation for court proceedings. I have a
good working knowledge of how court proceeding
work.
The Court: Tell me about that. How does a trial
work, sir?
Tatum: I mean, basically like I say, there’s opening
statements. You mean as far as proceedings before
trial?
The Court: During trial.
Tatum: At the trial beginning?
The Court: Yeah.
Tatum: Basically opening statements.
The Court: What happens right before opening
statements?
Tatum: I guess both parties states their appearance
and things like that.
The Court: How do we get a jury?
Tatum: You do voir dire.
The Court: How does that work?
Tatum: You question—you question jurors, potential jurors—
The Court: About what?
Tatum: About various things.
The Court: What are we looking for in jurors?

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Tatum: Fair people who are giving a fair determination as far as hearing evidence, not making biased
decisions, make decisions based on the evidence that’s
presented, not their own personal beliefs as far as, you
know, bias and things like that.
You have a certain amount of strikes, preemptory
and strikes for cause. You got strikes for cause and if I
had—I wasn’t incarcerated at the facility where I had
proper legal access I would be more prepared, I could
prepare adequately. If I wasn’t harassed in the jail I
could prepare a lot better that way.
The judge asked Tatum how he would go about representing
himself.
The Court: What kind of difficulties would you imagine that you would have in self-representation?
Tatum: You mean like my present circumstances?
The Court: In your present circumstances.
Tatum: Mainly the impairment based on the jail circumstances as far as them not providing me with reasonable access to the courts and legal materials.
Tatum and the judge then discussed how Tatum would go
about investigating the case. Tatum said he would continue
doing “what I’ve been doing all along,” by making phone
calls and gathering evidence. The colloquy then continued:
The Court: What are you charged with, sir?
Tatum: Two counts of first-degree intentional homicide.

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The Court: What’s the penalty—and two counts of
what?
Tatum: Use of a dangerous weapon.
The Court: What’s the penalty?
Tatum: Class A felonies carry the maximum of life
in prison.

Finally, the court summarized the holding of State v.
Klessig, 564 N.W.2d 716 (Wis. 1997), and concluded:
The Court: … He’s made the choice, there’s no
question about it. He’s aware of the seriousness of the
charges. He’s aware of the general range of penalties
but he is not aware of the difficulties and disadvantages of self-representation especially given his circumstances, and given the fact that he’s only got a
tenth-grade education therefore I deny his right to represent himself.
Tatum protested this decision and continued to press his objection to Erickson. The court overruled him, ordered Erickson to serve as trial counsel, and proceeded to the trial. The
jury found him guilty of both counts of first-degree homicide
and he was sentenced to life in prison without the possibility
of release.
In state post-conviction proceedings (which in Wisconsin
can occur simultaneously with a direct appeal, see Wis. Stat.
§ 974.06; Socha v. Pollard, 621 F.3d 667, 668 (7th Cir. 2010)), Tatum once again filed a motion to represent himself on appeal.
The appellate court permitted him to do so. On direct appeal,
he raised three grounds for relief, including that he had been

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denied his constitutional right to self-representation. The appellate court affirmed the trial court on all grounds. With respect to the self-representation claim, it ruled that Wisconsin
law requires the use of a higher standard for self-representation than it does for competence to stand trial. The Wisconsin
Supreme Court denied review.
Tatum then turned to the federal court and filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. He included his Faretta claim as one of four grounds for relief, and
the state conceded that he had exhausted and fairly presented
this point. The district court rejected his argument on the merits, however, finding that the Wisconsin courts’ approach to
the right to self-representation did not violate law clearly established by the Supreme Court of the United States. This
court granted Tatum’s request for a certificate of appealability,
limited to the self-representation issue.
II
Our consideration of this case is governed by the standards of the Antiterrorism and Effective Death Penalty Act
(AEDPA), under which a federal court may issue the writ of
habeas corpus only if the state court’s decision is “contrary to,
or involves an unreasonable application of, clearly established
Federal law,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
unreasonable determination of the facts in light of the evidence,” id. § 2254(d)(2). A decision is “contrary to” established
precedent “if it applies a rule that contradicts the governing
law set forth in [the Supreme Court’s] cases, or if it confronts
a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result.”
Brown v. Payton, 544 U.S. 133, 141 (2005). A state court’s decision “involves an unreasonable application of [the Supreme

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Court’s] clearly established precedents if the state court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable manner.” Id. This creates a high bar.
The state court decision cannot be merely wrong; it must be
so unreasonable that there is no possibility that “fairminded
jurists could disagree on the correctness” (or lack thereof) of
the decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotations omitted). We turn to Tatum’s arguments
with this demanding standard in mind.
Faretta established the basic principle that is at issue in this
case. Acknowledging that the question was not an easy one,
the Supreme Court held in 1975 that a state may not constitutionally “hale a person into its criminal courts and there force
a lawyer upon him, even when he insists that he wants to conduct his own defense.” 422 U.S. at 807. The Court also addressed the question before us: what does it take for a waiver
of counsel to be effective? This is what it had to say:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.
For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits. Although a defendant need not
himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record
will establish that he knows what he is doing and his
choice is made with eyes open.
Id. at 835 (internal citations and quotation marks omitted). It
went on to hold that Faretta had “clearly and unequivocally

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declared … that he wanted to represent himself and did not
want counsel.” Id. Moreover, “[t]he record affirmatively
show[ed] that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed
free will.” Id. The Court found no need to assess “how well or
poorly Faretta had mastered the intricacies of the hearsay rule
and the California code provisions that govern challenges of
potential jurors on voir dire,” because “his technical legal
knowledge, as such, was not relevant to an assessment of his
knowing exercise of the right to defend himself.” Id. at 836 (emphasis added).
The Court returned to the problem of self-representation
in Godinez v. Moran, 509 U.S. 389 (1993). The question there
was “whether the competency standard for pleading guilty or
waiving the right to counsel is higher than the competency
standard for standing trial.” 509 U.S. at 391. The Court answered with a flat “no.” Its opinion shows that the critical
question relates to the defendant’s mental functioning, not to
any particular knowledge he may have:
Nor do we think that a defendant who waives his
right to the assistance of counsel must be more competent than a defendant who does not, since there is no
reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional
rights. Respondent suggests that a higher competency
standard is necessary because a defendant who represents himself must have greater powers of comprehension, judgment, and reason than would be necessary to
stand trial with the aid of an attorney. … But this argu-

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ment has a flawed premise; the competence that is required of a defendant seeking to waive his right to
counsel is the competence to waive the right, not the
competence to represent himself.

Id. at 399 (internal quotation marks and citations omitted).
The Court wrapped up its opinion by reaffirming that the trial
court must always satisfy itself that the waiver is knowing and
voluntary. Only in this sense, it said, was more needed to
waive the right to counsel than is necessary for a finding of
basic competence to stand trial. See Westbrook v. Arizona, 384
U.S. 150 (1966).
In Iowa v. Tovar, 541 U.S. 77 (2004), the Court reiterated that
the critical point that must be established is that the waiver of
the right to counsel is the product of a “knowing, intelligent
act done with sufficient awareness of the relevant circumstances.” Id. at 80 (internal quotation marks and alterations
omitted). But Tovar holds that the Sixth Amendment does not
compel a trial court specifically to warn a defendant about the
substantive consequences of his waiver, including the risk
that a potential defense might be overlooked and the loss of
the chance to obtain an attorney’s independent opinion on the
wisdom of a guilty plea. Id. at 81.
The state courts thought that Indiana v. Edwards, 554 U.S.
164 (2008), introduced the possibility of taking into account
the defendant’s legal knowledge, but that is not what the case
holds. In Edwards, the Court faced the problem of “a criminal
defendant whom a state court found mentally competent to
stand trial if represented by counsel but not mentally competent to conduct that trial himself.” Id. at 167. In that situation,
it held, the state may insist that the defendant proceed to trial
with counsel.

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Mental competence, or mental functioning (as Faretta
called it), the Court said, presents a distinct problem for selfrepresentation. It acknowledged that Godinez had rejected the
idea of a two-tier standard for competence in the circumstances presented there. “To put the matter more specifically,
the Godinez defendant sought only to change his pleas to
guilty, he did not seek to conduct trial proceedings, and his
ability to conduct a defense at trial was expressly not at issue.”
Id. at 173. In addition, Godinez “involved a State that sought to
permit a gray-area defendant to represent himself”—a decision the Court held was permissible. Id.
With respect to the case before it, the Court began by “assum[ing] that a criminal defendant has sufficient mental competence to stand trial … and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at
trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” Id. at
174. It answered that question affirmatively, stressing
throughout its explanation that it was focusing on mental
competence. Some people, states may conclude, are competent
enough to stand trial with the assistance of counsel, but lack
sufficient competence to conduct their own defense. One example the Court gave of such a person was someone suffering
from mental derangement serious enough to deprive the person of a fair trial if he were to conduct his own defense. Id. at
175. It concluded with this statement: “[T]he Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky [v. United States,
362 U.S. 402 (1960)] but who still suffer from severe mental

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illness to the point where they are not competent to conduct
trial proceedings by themselves.” Id. at 178.
Throughout the opinion, the emphasis is on competence,
not on particular skill. The Court declined to accept Indiana’s
invitation to adopt a more specific standard under which a
defendant would not have the right to self-representation if
he could not communicate coherently with the court or a jury.
Id. It also rejected Indiana’s request to overrule Faretta. Id.
Rather than focusing on this line of U.S. Supreme Court
decisions, the Wisconsin courts in Tatum’s case relied on the
state supreme court’s decision in State v. Klessig, supra at 8, for
guidance. Klessig announced that “[j]ust as the right to the assistance of counsel is identical under the Wisconsin and
United States Constitutions, the right to represent oneself also
does not differ.” 564 N.W.2d at 720. As a matter of state-court
administration, it established a mandatory colloquy for cases
in which the defendant wants to waive counsel:
To prove such a valid waiver of counsel, the circuit
court must conduct a colloquy designed to ensure that
the defendant: (1) made a deliberate choice to proceed
without counsel, (2) was aware of the difficulties and
disadvantages of self-representation, (3) was aware of
the seriousness of the charge or charges against him,
and (4) was aware of the general range of penalties that
could have been imposed on him. … If the circuit court
fails to conduct such a colloquy, a reviewing court may
not find, based on the record, that there was a valid
waiver of counsel.
Id. at 206 (internal citation omitted). It then discussed the
standards for competence to stand trial and, citing Godinez,

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distinguished this from competence to represent oneself. Id.
at 208–09.
Although we have some question about the fourth item on
the Klessig list, which seems to address detailed knowledge
rather than competence, the greater problem is that the state
court, applying Klessig, strayed from the “mental functioning” sense of competence over to educational achievement
and familiarity with the criminal justice system. As the Wisconsin Supreme Court put it, “[i]n making a determination on
a defendant’s competency to represent himself, the circuit
court should consider factors such as the defendant’s education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his ability to
communicate a possible defense to the jury.” Id. at 212 (internal quotation marks omitted). It is a short step from those factors to the state trial judge’s concern about the level of education Tatum had achieved (tenth grade) and his apparent lack
of awareness of the difficulties of self-representation.
This is the third time in recent months that we have had to
consider a habeas corpus petition based on Faretta and the application of Wisconsin’s Klessig decision. Although this court’s
decisions are not authoritative for purposes of AEDPA, they
can present useful examples. In that spirit, we find the decision in Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016), helpful, as
Imani also involved the compatibility of Wisconsin’s Klessig
approach with the decisions of the U.S. Supreme Court. In
Imani, the petitioner tried to exercise his right to self-representation in a Wisconsin trial court, but the judge prevented him
from doing so. The judge dismissed as irrelevant and unconvincing Imani’s statement that he had been working on the
case for 13 months. Instead, after learning that Imani had a

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tenth-grade education, that he read at a college level, and that
he had appeared in at least five prior criminal cases, the judge
announced that Imani did not have a “sufficiently rational basis” to justify self-representation. Id. at 942. The Wisconsin Supreme Court found that the trial court’s determination that
Imani was not competent to proceed pro se was supported by
the record, despite the absence of any evidence of mental illness or disability.
We reversed, finding that the state supreme court’s decision “was flatly contrary to Faretta and its progeny in three
distinct ways.” Id. at 943. The first two dealt with burdens of
proof, but the third is directly relevant here: “the state court
imposed a competence standard much more demanding than
Faretta and its progeny allow, as if the issue were whether
Imani was an experienced criminal defense lawyer.” Id. at 944.
We continued with the observation that “Imani’s education
and communication abilities are materially indistinguishable
from those in Faretta, and the Wisconsin courts identified no
mental illness or impairment that might have rendered Imani
incompetent as allowed by Indiana v. Edwards … .” Id.
The same problem arose in Tatum’s case. Nothing in the
colloquy, most of which we have reproduced above, suggests
that Tatum suffered from deficient mental functioning, as opposed to a limited education. In fact, he displayed relatively
good knowledge of the criminal process: he gave a reasonable
description of voir dire (which he correctly called by name),
strikes for cause and peremptory strikes, opening statements,
the nature of the charges against him, and the general range
of penalties he faced. Faretta requires no more. The court’s failure to recognize this was compounded when it inappropri-

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ately placed the burden on Tatum to convince it that he understood, and accepted, the challenges of self-representation.
This, too, was inconsistent with Faretta, which places the duty
on the trial court to warn the defendant about what he is getting into, and then leave the defendant free to decide how he
wants to proceed. Faretta, 422 U.S. at 834 (the right to defend
is personal, and so “[i]t is the defendant … who must be free
personally to decide whether in his particular case counsel is
to his advantage”); see also Imani, 826 F.3d at 944.
Jordan v. Hepp, 831 F.3d 837 (7th Cir. 2016), which raised a
similar self-representation argument, provides a useful contrast to this case. The defendant, Jordan, was charged with
reckless homicide and related charges that stemmed from a
shooting death. Id. at 841. The Wisconsin court denied Jordan’s request to represent himself because Jordan was nearly
illiterate and had limited education. The court believed Jordan’s education would prevent him from making a meaningful defense because he would be unable to use written documents including police reports and a signed confession. Id. at
842.
In denying Jordan’s petition for a writ of habeas corpus,
we recognized that the Supreme Court has not precluded
state courts altogether from inquiring about a defendant’s
ability to represent himself. Id. at 844 (citing Godinez and Edwards). We observed that “the Wisconsin court came close to
making an unreasonable application of the Faretta line of
cases,” but we concluded that the state court’s decision did
not stray so far from Supreme Court precedent to warrant issuance of the writ. Id. at 843, 845.
It was possible in Jordan to view the state court’s inquiry
as one into the defendant’s mental functioning, as permitted

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by the Faretta line of cases. By contrast, nothing cast doubt on
Tatum’s competence in this sense of the term. Tatum’s education was not so limited that he would have been unable to defend himself. He told the judge that he attended public school
until the tenth grade, after which he attended home school.
He had been able to study court procedures and the Wisconsin statutes. That was enough. We note parenthetically that
requiring defendants to have a high school diploma or its
equivalent would preclude a great number of people from
representing themselves and leave little left of Faretta. One recent study of adults in state and federal prisons estimated that
some 30 percent of prisoners lack high school credentials. U.S.
DEP’T OF EDUC., NAT’L CENTER FOR EDUC. STATISTICS, NCES
2016-040, U.S. PROGRAM FOR THE INT’L ASSESSMENT OF ADULT
COMPETENCIES, U.S. NAT’L SUPPLEMENT: PRISON STUDY 2014,
Table 1.1, https://nces.ed.gov/pubs2016/2016040.pdf.
We conclude that the way in which the Wisconsin courts
implemented their Klessig test here was inconsistent with
Faretta’s prohibition against resting the determination about
the knowing and intelligent nature of the defendant’s choice
on his “technical legal knowledge.” Faretta, 422 U.S. at 835–
36. This is apparent both from the state trial judge’s comments
and from the Wisconsin appellate court’s concern that Tatum’s statements in court “reflect his limited understanding
of the scope of a proper investigation for the defense of homicide charges” and its comment that he failed to appreciate
“courtroom decorum and legal technicalities.”
None of this is to say that Tatum was making a wise choice
when he tried so hard to win his right to self-representation.
Faretta recognizes that “[i]t is undeniable that in most criminal
prosecutions defendants could better defend with counsel’s

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guidance than by their own unskilled efforts.” Id. at 834. But
Faretta protects the right of a criminal defendant to make this
(usually) self-defeating choice. By failing to recognize that the
Supreme Court’s Faretta line of cases focus only on competence as it relates to mental functioning, and forbids the consideration of competence in the sense of accomplishment, the
Wisconsin courts reached a result that is contrary to, as well
as an unreasonable application of, the Supreme Court’s rulings.
III
The judgment of the district court is REVERSED and the case
is REMANDED for issuance of the writ of habeas corpus, unless
the state within 90 days of issuance of this court’s mandate
initiates steps to give Tatum a new trial.