Bilauski v. Roper

Filing 34

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner Richard Bilauski's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED. IT IS FURTHER ORDERED that petitioner be permitted to present his claim based on Fare tta v. California in a new direct appeal of his conviction to the Missouri Court of Appeals within in (60) days of the date of this order. IT IS FURTHER ORDERED that, in the event petitioner is not permitted to pursue a new direct appeal, that petiti oners conviction be vacated, and that petitioner be afforded a new trial within nine months of the date of this order. If the State does not afford a new trial, the petitioner should be released from custody. Signed by District Judge Rodney W. Sippel on 3/29/13. (LAH)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD BILAUSKI,
Petitioner,
v.
TROY STEELE, et al.,
Respondents.

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Case No. 4:09 CV 1983 RWS

MEMORANDUM AND ORDER
Petitioner Richard Bilauski seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Bilauski alleges that his counsel on direct appeal was ineffective for failing to raise the claim
that the trial court violated his Sixth Amendment right to self-representation. 1I referred this
matter to a United States Magistrate Judge for a Report and Recommendation on all dispositive
matters pursuant to 28 U.S.C. § 636(b). On January 8, 2013, the Magistrate Judge filed his
recommendation that Bilauski’s habeas petition should be granted. The Missouri Attorney
General timely filed his objections to the Report and Recommendation.
Based on my de novo review of Bilauski’s claims, 1I will adopt the thorough reasoning
of the Magistrate Judge and will grant Bilauski’s habeas petition to permit him to file a new
appeal of his conviction and present his claim that the trial court violated his Sixth Amendment
right to self-representation.
Background
The Magistrate Judge’s Report and Recommendation provides a detailed factual and
procedural background of this case, which I adopt in whole.

During Bilauski’s criminal trial he filed a written Request for Waiver of Counsel. The
trial court never ruled on his request. Bilauski proceeded to trial with appointed counsel and was
convicted. Bilauski appealed his conviction and was represented by appointed counsel.
Bilauski’s direct appeal counsel did not raise the claim that the trial court violated his Sixth
Amendment right to self-representation.
Thereafter, Bilauski filed a motion for post-conviction relief, in which he raised the claim
of ineffective assistance of direct appeal counsel for her failure to raise the claim that the trial
court violated his Sixth Amendment right to self-representation. The post-conviction motion
court denied Bilauski’s motion. On post-conviction appeal, the Missouri Court of Appeals
determined that Bilauski’s direct appeal counsel was not ineffective because her decision to
forgo the Sixth Amendment claim was strategic and the claim would not have required reversal
of Bilauski’s conviction if raised on direct appeal. Bilauski now challenges the Missouri Court
of Appeals’ decision under 28 U.S.C. § 2254.
Legal Standard
When a claim has been adjudicated on the merits in a state court proceeding, a federal
court may grant a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDP”) 28 U.S.C. § 2254(d), only if the state court’s determination:
(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained the standard
for reviewing a state habeas case. A state court’s decision is “contrary to” clearly established
federal law “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 decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at 413. A state court’s decision is
an “unreasonable application” of law if it identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies that principle to the facts of the
prisoner's case.” Id. A state court’s determination of fact is presumptively correct and can only
be proven unreasonable by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
This is a highly deferential standard. Hardy v. Cross, 132 U.S. 490, 491 (2011). “[A]n
unreasonable application of federal law is different from an incorrect application of federal law.”
Harrington v. Richter, 131 S.Ct. 770 (2011). It is not enough for me to conclude that, in my
independent judgment, I would have applied federal law differently from the state court; the state
court's application must have been objectively unreasonable. Collier v. Norris, 485 F.3d 415,
421 (8th Cir. 2007) (citing Williams, 529 U.S. at 411). Even a strong case for habeas relief does
not mean that the state court’s contrary conclusion was unreasonable. Richter, 131 S.Ct. at 786.
Bilauski argues that the Missouri Court of Appeals unreasonably applied the clearly
established federal law set forth in Strickland v. Washington, 466 U.S. 668 (1984), which
requires that a defendant alleging a violation of the the Sixth Amendment right to effective
assistance of counsel must show (1) that his counsel Amade errors so serious that counsel was not
functioning as the >counsel= guaranteed the defendant by the Sixth Amendment,@ and (2) that his
counsel=s Aperformance prejudiced the defense.@ Id. at 687.
To prove the performance prong, a defendant must show that Acounsel=s representation
fell below an objective standard of reasonableness.@ Strickland, 466 U.S. at 688. When
evaluating counsel=s performance, Aa court must indulge a strong presumption that counsel=s
conduct falls within the wide range of reasonable professional assistance.@ Id. at 689. “There is
a strong presumption that counsel's attention to certain issues to the exclusion of others reflects

trial tactics rather than sheer neglect.” Richter, 131 S.Ct. at 790 (internal quotations omitted).
And, to Aeliminate the distorting effects of hindsight,@ courts examine counsel=s performance
from counsel=s perspective at the time of the alleged error. Strickland, 466 U.S. at 689.
To prove the prejudice prong, defendant “must show that the deficient performance
prejudiced the defense.” Id. at 687. The defendant “must show a reasonable probability that, but
for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his
appeal.” Smith v. Robbins, 528 U.S. 259 (2000). “A reasonable probability is a probability
sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694. “That
requires a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster,
131 S.Ct. 1388, 1403 (2011) (internal quotations omitted).
“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 130
S.Ct. 1473, 1485 (2010). Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is even more difficult. “Taken together, AEDPA and Strickland
establish a ‘doubly deferential standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th
Cir. 2012) (citing Cullen, 131 S.Ct. at 1410). The pivotal question is not whether Bilauski’s
direct appeal counsel fell below Strickland’s standard, but whether the state court’s application
of Strickland was objectively unreasonable.
Discussion
Because the Missouri Court of Appeals correctly identified Strickland as the governing
legal standard from Supreme Court precedent when ruling on Bilauski’s post-conviction motion,
I must now determine whether the court unreasonably applied that standard to the facts of
Bilauski’s case.
Performance Prong

The Missouri Court of Appeals found that counsel’s failure to raise a Sixth Amendment
claim on direct appeal was a strategic decision, and thus not ineffective performance. I find that
this an unreasonable application of Strickland. In Faretta v. California, 422 U.S. 806, the
Supreme Court explained a criminal defendant’s Sixth Amendment right to self-representation.
When a defendant voluntarily and unequivocally asserts his right to self-representation, the court
must inquire into the defendant’s understanding of the right and ensure he has a full
understanding of the consequences of self-representation. Faretta, 422 U.S. at 835-35. Here, it
is undisputed that on April 5, 2002, Bilauski filed a “Request for Waiver of Counsel,” and that
the trial court never addressed this request. It is also undisputed that counsel did not raise a
Faretta claim on direct appeal.
Of course the mere fact that counsel failed to raise a claim on direct appeal does not
render her performance ineffective. Rather the “process of winnowing out weaker arguments on
appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536. On the
other hand, omitting a meritorious claim without a reasonable investigation may render counsel’s
performance constitutionally deficient. While counsel cannot be expected to fully investigate the
entire universe of potential claims, “strategic choices made after less than complete investigation
are reasonable to precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690. “[C]ounsel has a duty to make
reasonable investigation or to make a reasonable decision that makes particular investigations
unnecessary.” Id. Here, the Missouri Court of Appeals did not consider whether Bilauski’s
direct appeal counsel’s decision not to raise a Faretta claim was supported by a reasonable
investigation, and the record does not indicate that a reasonable investigation occurred.

Bilauski’s direct appeal counsel does not have a clear, independent recollection of her
thought process while representing Bilauski; however, she testified in a deposition for the postconviction proceeding that she has “no explanation for why [she] would have chosen not to
pursue [a Faretta claim] except perhaps [she] just missed it.” (Resp. Exh. K at 16). Counsel
does not recall “doing some research and making a conscious decision” that a Faretta claim was
not a viable issue. Id. And counsel “certainly [does not] remember making any type of strategic
decision.” Id. at 13. Indeed, counsel admits that she “should have raised” the Faretta issue and
that “it’s quite possible that [she] did not advocate effectively for Mr. Bilauski.” Id. at 15, 17.
As a result, there is no indication that that counsel made a strategic decision not to raise the
Faretta issue after determining through a reasonable investigation that the claim would not be
meritorious. There may be “countless ways to provide effective assistance in any given case,”
but overlooking a potentially viable claim is not one of them. Strickland, 466 U.S. at 689.
The Missouri Court of Appeals’ decision supplants the evidence with hypotheticals to
conceive of a scenario where counsel’s admitted oversight of a potentially viable claim becomes
a strategic decision. Bilauski’s direct appeal counsel testified that, theoretically, she would
consider the fact that a defendant filed a motion to represent himself and then subsequently
expressed a desire to have new counsel when determining whether a claim was meritorious. Id.
at 27. Relying on this testimony, the Missouri Court of Appeals, in ruling on Bilauski’s postconviction motion, assumed that it appeared to Bilauski’s direct appeal counsel that Bilauski was
simply trying to obtain new counsel rather than waive his right to counsel and thus made the
strategic decision that a Faretta claim was not meritorious. (Resp. Exh. L, at 5). But the
Missouri Court of Appeals failed to assess the reasonableness of counsel’s investigation of this
issue before forging ahead without raising a Faretta claim. As a result, the “strategic decision”

the Missouri Court of Appeals invokes to justify counsel’s limited investigation “resembles more
a post hoc rationalization of counsel’s conduct than an accurate description [her] deliberations.”
Wiggins v. Smith, 539 U.S. 514, 526 (2003)); see also Harris v. Reed, 894 F.2d 871, 878 (7th
Cir. 1990) (“Just as a reviewing court should not second guess the strategic decisions of counsel
with the benefit of hindsight, it should also not construct strategic defenses which counsel does
not offer.”). By failing to assess the reasonableness of counsel’s investigation, the Missouri
Court of Appeals unreasonably applied Strickland. See Wiggins, 539 U.S. at 538. As a result, I
find that the Magistrate Judge correctly determined that the Missouri Court of Appeals’ decision
is objectively unreasonable.
Prejudice Prong
The Missouri Court of Appeals found that there is not a reasonable probability that
Bilauski’s Faretta claim would have prevailed on appeal. I find this an unreasonable application
of Strickland. The Missouri Court of Appeals found that Bilauski repudiated his assertion of his
right to self-representation because he filed motions seeking appointment of new counsel after
his request to waive counsel. (Resp. Exh. L, at 5). The Missouri Court of Appeals also found
that Bilauski testified at the evidentiary hearing that he was “attempting to communicate that that
given the chance between his current trial counsel and representing himself, he preferred to
proceed pro se.” Id. at5-6.

Based on this information, the Missouri Court of Appeals

concluded that it is “clear from the record” that Bilauski wanted counsel, just not his current trial
counsel. Id.
While the Missouri Court of Appeals’ characterization of Bilauski’s behavior is
plausible, it was an unreasonable determination of fact to conclude that it was the only
explanation. It is undisputed that Bilauski filed a clear, unequivocal written Request for Waiver

of Counsel on April 5, 2002. Yet the trial court did not address the request and continued to
ignore Bilauski’s pro se motions while conducting pretrial proceedings with his appointed
counsel. Bilauski waited more than seven months with no ruling on his request to proceed pro se
before filing another motion to have his counsel replaced. Bilauski testified that the trial court’s
failure to rule on this request to proceed pro se led him to believe that the request was denied.
(Resp. Exh. I, at 9). To the extent that Bilauski proceeded to trial with appointed counsel
without orally invoking his right to self-representation, Bilauski testified that that he felt he had
no choice but to proceed with counsel given the silence on his request and the trial judge’s
admonition immediately prior to trial that he would be better off with representation. Id. at 1113. Thus, there is clear and convincing evidence contrary to Missouri Court of Appeals’
determination that it is “clear from the record” that Bilauski wanted to be represented by
counsel.
Bilauski claims that he invoked his Sixth Amendment right to self-representation but was
ignored in violation of Faretta. There is a reasonable possibility that Bilauski’s claim would
succeed on appeal. When the state court’s erroneous determination of fact is corrected, the
likelihood that Bilauski would prevail is substantial, not just conceivable. Strickland, 466 U.S.
at 693. As a result, I find that the Magistrate Judge correctly determined that the Missouri Court
of Appeals’ decision is objectively unreasonable.
Conclusion
The AEDPA standard was intentionally made difficult to meet in order to respect the
“States’ sovereign power to punish offenders and their good-faith attempts to honor
constitutional rights.” Calderon v. Thompson, 523 U.S. 538, 555-556 (1998). As such, “federal
habeas review is a guard against extreme malfunctions in the state criminal justice systems, not a

substitute for ordinary error correction through appeal. Richter, 770 S.Ct. at 786. This is one of
the rare instances in which habeas relief must be granted in order to protect a defendant’s
constitutional rights. The Missouri Court of Appeals’ decision was an unreasonable application
of clearly established Supreme Court precedent, and was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding. As a
result, I agree with the Magistrate Judge’s recommendation that Bilauski be permitted to argue
on direct appeal that that the trial court violated his Sixth Amendment right to selfrepresentation.
Accordingly,
IT IS HEREBY ORDERED that petitioner Richard Bilauski’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED.
IT IS FURTHER ORDERED that petitioner be permitted to present his claim based on
Faretta v. California in a new direct appeal of his conviction to the Missouri Court of Appeals
within in (60) days of the date of this order.
IT IS FURTHER ORDERED that, in the event petitioner is not permitted to pursue a
new direct appeal, that petitioner’s conviction be vacated, and that petitioner be afforded a new
trial within nine months of the date of this order. If the State does not afford a new trial, the
petitioner should be released from custody.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 29th day of March, 2013