Imani, Rashaad v. Pollard, William

Filing 27

ORDER that the 1 petition filed by Rashaad A. Imani for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and this case is DISMISSED with prejudice. The clerk of court is directed to enter judgment for respondent and close this case. A certificate of appealability is GRANTED. Signed by District Judge William M. Conley on 9/29/2014. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RASHAAD A. IMANI,
Petitioner,

OPINION AND ORDER

v.

11-cv-677-wmc

WILLIAM POLLARD, Warden,
Waupun Correctional Institution,
Respondent.1

Petitioner Rashaad A. Imani seeks a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging the validity of his state court conviction. Imani argues primarily that
he was denied the constitutional right to represent himself during his trial.

After

conducting a preliminary review of the petition, this court directed respondent to show
cause why relief should not be granted. The respondent filed an answer, along with
records from the relevant state court proceedings, and both parties subsequently
submitted briefing.

Although the petition presents a close legal question, after

considering all of the parties’ submissions and the state court record, the court will deny
Imani’s petition for reasons set forth below.

When petitioner filed this case he was incarcerated by the Wisconsin Department of Corrections
at the Wisconsin Secure Program Facility in Boscobel. Because petitioner indicates that he has
been reassigned to the Waupun Correctional Institution, the court has substituted Warden
William Pollard as the proper respondent pursuant to Rule 2(a) of the Rules Governing Section
2254 Cases in the U.S. District Courts.
1

1

FACTS
A. Background
As summarized by the Wisconsin Supreme Court, the facts underlying petitioner’s
offense of conviction are as follows:
¶ 4 . . . [O]n March 1, 2006, Imani and his cousin, Raziga Imani,
masked and carrying firearms, entered the Guaranty Bank inside the Pick’n
Save grocery store on Appleton Avenue in Menomonee Falls. The Imanis
demanded money from the bank employees and left with a metal bank box
containing in excess of $100,000. With Imani driving, they fled from the
scene in a stolen vehicle and were subject to a high-speed pursuit by a
Menomonee Falls police officer. Imani eventually lost control of the vehicle
and crashed on Hampton Avenue. The Imanis escaped from the vehicle on
foot and separated.
¶ 5 Still carrying his firearm, Imani entered the Milwaukee Washing
Machine, Inc. store on Appleton Avenue and demanded a ride from the
driver of the Buick Riviera parked outside. He told the driver, James Dukes
(Dukes), that he had just robbed a bank in Menomonee Falls. Dukes drove
Imani to a location about four or five minutes away. A fingerprint lifted
from the Buick’s passenger’s side door handle was later identified as
Imani’s, and when presented by the police with a range of photographs,
Dukes selected Imani as the individual who carjacked him.
State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 188-89, 786 N.W.2d 40 (footnote
omitted).
Both petitioner and his cousin, Raziga, were apprehended by police on the day of the
robbery.2 At that time, Raziga admitted to his role in the robbery, although petitioner
did not.

For simplicity, petitioner Rashaad Imani will be referred to here as petitioner or Imani, while
his cousin and co-defendant, Raziga Imani, will be referred to as Raziga.
2

2

B. Conviction in Wisconsin Circuit Court
Petitioner was charged as a repeat offender with aggravated robbery and
possession of a firearm as a felon in State v. Imani, Waukesha County Case No. 06CF677.
Through his court-appointed attorney, petitioner filed a pretrial motion to suppress his
identification by James Dukes on the grounds that media coverage may have tainted his
recollection.
Petitioner’s and his cousin’s joint trial was scheduled to commence on August 28,
2007. At a pretrial hearing on July 31, 2007, the circuit court denied petitioner’s motion
to suppress Dukes’ identification testimony. Raziga also appeared at the pretrial hearing,
representing himself with the assistance of stand-by counsel.
At the close of that hearing, petitioner stated that he, too, also wanted to
represent himself at trial. The circuit court then asked him why. Petitioner explained
that he did not feel as though his counsel “spoke up enough for [him]” during the motion
hearing and that he was “very dissatisfied.” (Dkt. # 7, Exh. 20, Motion Hearing Tran. at
30.) In particular, he was upset that his counsel neither played a news broadcast at the
hearing in an attempt to jog Dukes’ memory, nor fully investigated the circumstances
surrounding the fingerprint analysis. Petitioner expressed further frustration that he had
“been through this with about three lawyers now” and was unsatisfied with all of their
efforts. (Id. at 31.)
Thus, petitioner felt that he could best represent himself at trial:
So, when it comes to trial I know, like I said before, ain’t nobody
going to represent myself better than me. I’ve been dealing with this case

3

for over a year now and I'm pretty sure that I got a fuller defense prepared
that I’ve been preparing myself, you know, with the help of my lawyers,
you know. I mean, I’ve been through the preliminary hearing, so I then
watched my lawyers question a few witnesses, you know. I think I know
how to articulate myself very well.
I might not be too eloquent in speech, you know, as like my lawyer
here. But I know that when it come to trial, you know, I can represent
myself well enough.
(Id. at 33-34.)
The circuit court tried to convince petitioner to continue working with his
appointed counsel, but petitioner insisted that he wanted to question the
witnesses against him and to ask questions that he did not believe his attorney
would present. (Id. at 34-35.) The circuit court then asked petitioner to convince
him that he was “competent” to represent himself. Petitioner responded that he
had been “working on” his case for 13 months, had completed the tenth grade,
could read and write English, and that he could read at a college level. Petitioner
also represented that he had appeared in court at least five times before in other
cases, though admittedly always with counsel:
The Court: And what experience do you have with the legal system? Have
you ever appeared in court besides this case?
Mr. Rashaad Imani: Of course.
The Court: For what kind of matters, criminal matters, or?
Mr. Rashaad Imani: Criminal matters.
The Court: How many times do you think?
Mr. Rashaad Imani: At least maybe, five.

4

The Court: Have you ever represented yourself in court before?
Mr. Rashaad Imani: No.
The Court: You have always had a lawyer?
Mr. Rashaad Imani: Yes.
(Id. at 36.)

After the State expressed concern that the trial would be unduly

delayed by irrelevant questions and objections, petitioner advised the circuit court
that he would be willing to let his appointed attorney act as “stand-by counsel.”
Ultimately, the circuit court denied petitioner’s motion to represent himself
with the following explanation:
While it is not the last minute on the clock we’re getting close to a
jury trial that requires substantial and extensive preparation. And I’m -because it is a two defendant trial it makes it particularly difficult to get
that preparation on track. We not only have to have the State and
Defendant, we have two defendants.
And everybody has to be prepared and ready to start the same day at
the same time, and keep the case organized together. That means that any
potential threat to keeping the schedule is an even bigger issue than it
otherwise would be.
Since Mr. Raziga Imani raised this issue a while ago there has been
more opportunity for him to prepare himself and be ready for trial. This is
more of an eleventh hour request.
I also have in mind that Mr. Rashaad Imani has had several lawyers.
And while he certainly is entitled to some degree to have the lawyer of his
choice and to switch lawyers, that is not an unlimited right. It has to be
balanced against proper preparation and conducting of a trial.
The reasons he gives they seem to be episodic driven, he comes to
court today on a motion, he doesn’t win the motion and now he is

5

disgruntled. That’s in and of itself not a sufficiently rational basis to justify
such a decision.
....
I don’t know that much about his capability, but he has only got a
10th grade education, he said he reads at a college level, that’s the only
information I have on the subject of his education and background.
He says he has been to court, but apparently those didn’t involve
trials, and he didn’t represent himself. So while he has some observational
experience with the criminal court system, it hasn’t been presented to me
that he has any experience actually conducting proceedings like a criminal
court trial.
So in order to preserve the trial date, maintain the opportunity to be
prepared and go forward, and to not make a flippant short term or
immature decision go into effect, I’m going to deny it at this point.
(Id. at 38-40.) Despite denying the motion, the circuit court went on to explain that it
would be willing to hear petitioner’s motion again, so long as it would not jeopardize the
trial date. (Id. at 40.)
Petitioner attempted more than once to interject during the court’s explanations,
but the court ultimately refused his motion for self-representation.

(Id. at 39, 40.)

Indeed, petitioner and his counsel never revisited the issue at any time during the
remaining four weeks leading up to trial, even after his cousin Raziga pled guilty.
At trial, petitioner was represented by court-appointed counsel. Pursuant to his
plea agreement, Raziga testified against Imani and the jury found petitioner guilty as
charged. The circuit court subsequently sentenced him to serve 25 years’ imprisonment
to be followed by a 15-year term of extended supervision on the aggravated robbery

6

count. The circuit court also imposed a concurrent 10-year sentence on the firearmpossession count.
C. Wisconsin Court of Appeals
On direct appeal, petitioner argued that (1) the evidence was insufficient to
support his conviction; and (2) the circuit court erred by denying his request for leave to
represent himself at trial. In State v. Imani, 2009 WI App 98, 320 Wis. 2d 505, 771
N.W.2d 379, the Wisconsin Court of Appeals held that the trial evidence was more than
sufficient to support the verdict, but reversed the conviction and remanded the case for a
new trial after finding that the circuit court failed to conduct the waiver-of-counsel
colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). In
Klessig, the Wisconsin Supreme Court held that a 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 [or her], and (4) was aware
of the general range of penalties that could have been imposed on him [or
her].
Imani, 2009 WI App 98, ¶ 14, 771 N.W. 2d 379, 383 (quoting Klessig) (alteration in
original).
In contrast, the court of appeals noted that the circuit court in Imani’s case “did
not even touch on” the colloquy required in Klessig for the purpose of establishing
whether Imani’s waiver of counsel was knowing and voluntary. Id., ¶ 15. The court
further held that, as to competence, the circuit court failed to identify a “specific problem

7

or disability which might significantly affect [Imani’s] ability to communicate a
meaningful defense.” Id., ¶ 17. Instead, the circuit court sacrificed Imani’s right to selfrepresentation “to preserve the trial date” and due to its “concern about conducting an
efficient trial.” Id., ¶ 18. On those grounds, the court of appeals concluded that Imani
was entitled to a new trial.
D. Review by Wisconsin Supreme Court
The State then filed a petition for review with the Wisconsin Supreme Court,
arguing that after finding the trial court failed to conduct the colloquy required by Klessig,
the court of appeals erred by remanding for a new trial instead of a retrospective hearing.
(Dkt. # 7, Exh. 10:6.) The Supreme Court granted the petition and ordered full briefing
and oral argument. (Dkt.# 7, Exh. 12.)
In its brief-in-chief, the State renewed its argument that the court of appeals had
erred by remanding for a new trial rather than for a postconviction hearing to address the
circuit court’s procedural error in failing to conduct a full Klessig colloquy. (Dkt. # 7,
Exh. 13:10-15.) The State argued that because the injury to petitioner was the failure to
conduct the required colloquy, and not an established denial of his constitutional right to
self-representation, “the proportional remedy is to conduct [a] hearing better late than
never if that can be done.” (Dkt. # 7, Exh. 13:12.) The State also argued that the
general presumption of the non-waiver of the right to counsel found in Klessig, 211 Wis.
2d at 204, meant the petitioner should carry the burden of showing at any retrospective
hearing that his waiver was knowing, intelligent and voluntary. (Dkt. # 7, Exh. 13:15-

8

17.) Finally, since neither party carried the burden of proof on the question of whether
petitioner was in fact competent to represent himself, the State maintained that the
decision should have been left to the circuit court’s discretion. (Dkt. # 7, Exh. 13:1719.)
In response, petitioner conceded that the remedy specified in Klessig was a
postconviction hearing, but argued that his case was distinguishable from Klessig. (Dkt.
7-14:6-9.) Petitioner argued, therefore, that a new trial was the more appropriate relief.
While acknowledging that the circuit court failed to conduct the full colloquy
contemplated by Klessig, the Wisconsin Supreme Court found that the circuit court had
substantially complied:
We conclude that Imani was not deprived of his constitutional right
to self-representation because the circuit court properly determined that
Imani did not validly waive his right to counsel under Klessig. We are
cognizant of the fact that the circuit court did not engage Imani in the full
colloquy prescribed in Klessig and did not utilize the exact language or
“magic words” of Klessig when conducting its colloquy. The circuit court’s
inquiry could have been better. Nevertheless, it is evident from the record
that the circuit court engaged Imani in two of the four lines of inquiry
prescribed in Klessig: whether Imani made a deliberate choice to proceed
without counsel and whether Imani was aware of the difficulties and
disadvantages of self-representation. Because we answer both in the
negative, it necessarily follows that Imani did not validly waive his right to
counsel. Even had the circuit court engaged him further, the answer would
have been the same. Under Klessig, as long as the circuit court finds that
one of the four conditions is not met, the court cannot permit the
defendant to represent himself. We do not impose on circuit courts the
requirement of placing form over substance and using “magic words” when
the reality of the circumstances dictate the answer.
Imani, 2010 WI 98 at ¶ 26 (footnote omitted).

9

In upholding the circuit court’s finding that Imani’s request to represent himself
was not sufficiently deliberate, the Wisconsin Supreme Court emphasized in particular
the knee-jerk nature of his request:
The circuit court’s explanation for denying Imani’s motion to
represent himself makes apparent that the court could not find that Imani
deliberately chose to proceed without counsel. According to the circuit
court, Imani’s decision to represent himself was “flippant,” “short term,”
and “immature.” The reasons he gave did not reflect a deliberate choice but
instead were “episodic driven.” Specifically, the circuit court found that
Imani was “disgruntled” about losing his motion to suppress Dukes’ incourt identification of him, and that “in and of itself [was] not a
sufficiently rational basis to justify” his decision to represent himself. We
agree.
The record reflects that Imani did not make a deliberate choice to
proceed without counsel. Rather, he made a hasty request on the heels of
an unsuccessful motion hearing. Imani’s immediate reason for wanting to
represent himself was his belief that his counsel did not “sp[eak] up enough
for [him] during [that] proceeding.” He was particularly upset that his
counsel did not play a news broadcast at the hearing, and he “wasn’t
satisfied with the questions that [his counsel] asked Mr. Dukes.” Imani
stated, “If [my counsel], you know, doing this type of job here then I know
at trial I don’t -- I don’t feel as though he is going to represent me well
enough.” It is clear that Imani did not make a deliberate choice to represent
himself. Instead, he impulsively moved for self-representation as a result of
his aggravation towards counsel and the fact that he did not prevail on the
motion to suppress.
Moreover, the record indicates that despite the circuit court’s
invitation, Imani never before and never again expressed a desire to
represent himself. To the contrary, in this case alone, he was assisted at
various times by four different attorneys, and he twice expressly requested
new appointment of counsel. He never took the circuit court up on its offer
to hear his motion for self-representation again or to permit him to
participate at trial with standby counsel. In fact, Imani’s decision to
represent himself at trial was evidently conditioned upon the assistance of
counsel, and thus, he may not have truly sought to waive counsel in the
first instance. Specifically, in his “heat of the moment” argument, he
informed the circuit court that he “[did not] have any problem with” the

10

trial being scheduled for the next month “as long as [his] lawyer will make a
full investigation into the fingerprint.”
We therefore agree with the circuit court’s finding that Imani’s
choice to proceed without counsel, if it even was that, was not deliberate
but instead was “episodic driven.” The record reflects that he made a hasty
request on the heels of an unsuccessful motion hearing and never again
expressed a sincere desire to be without the assistance of counsel -- until he
was convicted.
Id. at ¶¶ 27 - 30 (footnote omitted).
The Wisconsin Supreme Court further found that Imani was not aware of the
dangers and difficulties of self-representation, despite the circuit court’s failure to broach
that subject explicitly:
Without using the “magic words,” the circuit court also engaged
Imani in a colloquy concerning the difficulties and disadvantages of selfrepresentation. The court twice mentioned the added difficulty in preparing
for and conducting a two-defendant jury trial. The court also noted the
“complicated and messy” nature of self-representation and how it “is almost
always the wrong tactical move” because “it is confusing as to when you're
speaking as yourself and when you’re speaking on behalf of yourself.”
Based upon our review of the record, the circuit court correctly
determined that Imani was unaware of the difficulties and disadvantages of
self-representation. By his own contention, his success at trial was
conditioned upon the assistance of counsel. As he indicated to the circuit
court, he was “pretty sure” that he had a “fuller defense prepared that [he
had] been preparing [him]self, you know, with the help of [his] lawyers.” In
addition, as previously mentioned, he told the court that he would be ready
to represent himself at trial “as long as [his] lawyer will make a full
investigation into the fingerprint.” Relying as he did on the assistance of
counsel, we cannot conclude that Imani appreciated the difficulties and
disadvantages of self-representation, even if we presume that he truly
meant to waive his right to counsel.

11

Id. at ¶¶ 31-32. Thus, the Wisconsin Supreme Court determined that the circuit court
sufficiently complied with its decision in Klessig and was justified in finding petitioner’s
waiver invalid.
The Wisconsin Supreme Court went on to conclude that the circuit court’s
determination that Imani was not competent to proceed pro se was supported by the facts
in the record:
In addition to knowingly, intelligently, and voluntarily waiving the
right to counsel, a defendant who seeks to represent himself or herself must
be competent to proceed pro se. Klessig, 211 Wis. 2d at 203, 564 N.W.2d
716; Pickens, 96 Wis. 2d at 567, 292 N.W.2d 601. Determining whether a
defendant is competent to proceed pro se is a higher standard than
determining whether a defendant is competent to stand trial. Klessig, 211
Wis. 2d at 212, 564 N.W.2d 716. “Surely a defendant who, while mentally
competent to be tried, is simply incapable of effective communication or,
because of less than average intellectual powers, is unable to attain the
minimal understanding necessary to present a defense, is not to be allowed
‘to go to jail under his own banner.’” Pickens, 96 Wis. 2d at 568, 292
N.W.2d 601 (quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12,
15 (2d Cir. 1965)).
Whether a defendant is competent to proceed pro se is “uniquely a
question for the trial court to determine.” Pickens, 96 Wis. 2d at 568, 292
N.W.2d 601. “It is the trial judge who is in the best position to observe the
defendant, his conduct and his demeanor and to evaluate his ability to
present at least a meaningful defense.” Id. In determining whether a
defendant is competent to proceed pro se, the circuit court may consider the
defendant’s education, literacy, language fluency, and any physical or
psychological disability which may significantly affect his ability to present
a defense. Id. at 569, 292 N.W.2d 601. A defendant of average ability and
intelligence may still be adjudged competent for self-representation, and
accordingly, a defendant’s “timely and proper request” should be denied
only where the circuit court can identify a specific problem or disability
that may prevent the defendant from providing a meaningful defense. Id.
While the determination of competency rests significantly upon the circuit
court’s judgment and experience, the determination must appear in the
record. Klessig, 211 Wis. 2d at 212, 564 N.W.2d 716. Our review is limited

12

to whether the circuit court’s determination is “totally unsupported by the
facts apparent in the record.” Pickens, 96 Wis. 2d at 569-70, 292 N.W.2d
601.
In this case, we conclude that the circuit court’s determination that
Imani was not competent to proceed pro se is also supported by the facts in
the record. The circuit court inquired into Imani’s level of education, his
ability to read and write, and his experience with the legal system. Imani
possessed only a tenth grade education and asserted, without more, that he
read at a college level. As the circuit court correctly observed, Imani’s
experience with the criminal court system was “observational,” as his court
appearances always included the assistance of counsel. Considering all
those factors, the circuit court determined that Imani did not possess the
minimal competence necessary to conduct his own defense. We cannot
conclude that the circuit court’s determination is “totally unsupported” by
the record. Id.
Moreover, contrary to the court of appeals’ conclusion, it was not
error for the circuit court to take into consideration the trial schedule when
determining whether Imani was competent to proceed pro se. See Imani,
320 Wis. 2d 505, ¶ 18, 771 N.W.2d 379. In Pickens, which we regard as
the controlling authority on competency, Klessig, 211 Wis. 2d at 212, 564
N.W.2d 716, this court recognized that a “timely and proper request” to
proceed pro se should be denied only where the circuit court can identify a
specific problem or disability that may prevent the defendant from
providing a meaningful defense. Pickens, 96 Wis. 2d at 569, 292 N.W.2d
601 (emphasis added). Accordingly, the circuit court was justified in taking
into consideration the timing of Imani’s motion to represent himself and
the fact that it was first presented to the court less than one month before a
two-defendant jury trial that required “substantial and extensive
preparation.”
Id. at ¶¶ 36-39. Having found that petitioner did not validly waive his right to counsel
and was not competent to proceed pro se, the Wisconsin Supreme Court held that the
circuit court was required to prevent him from representing himself. Id. at ¶ 40.
In a separate opinion, concurring in part and dissenting in part, Justice Crooks;
joined by Chief Justice Abrahamson and Justice Bradley, criticized the majority for

13

casting the issue in the case as whether the trial court properly denied Imani’s request to
represent himself. 2010 WI 66, ¶¶ 43, 47-48, 326 Wis. 2d 179 (Crooks, J.). Justice
Crooks argued that in doing so, the majority opinion effectively overruled Klessig’s “clear,
useful bright-line rule,” which he characterized as requiring Wisconsin trial courts to hold
a full and complete colloquy whenever a defendant moves to proceed pro se. Id. ¶ 48. The
concurrence/dissent would have remanded for a retrospective evidentiary hearing to
determine whether Imani’s waiver of counsel was knowing, intelligent and voluntary. Id.
¶¶ 43-44.

The concurrence/dissent also objected to the majority’s treatment of the

competency issue, arguing that: (1) the majority should not have upheld the trial court’s
(implicit) determination that Imani was not competent to represent himself, because the
circuit court failed to make the requisite finding under Pickens, 96 Wis. 2d at 569, that
petitioner had a disability or problem that would have prevented him from presenting a
meaningful defense; and (2) the trial court never made an explicit determination that
petitioner was not competent to represent himself. Imani, 2010 WI 66, ¶¶ 72-74, 326
Wis. 2d 179.
Petitioner filed a motion for reconsideration on grounds that the court, by
reaching the question of whether the circuit court properly denied him the right to
represent himself, decided the case on an issue that was not presented for review. (Dkt.
# 7, Exh. 17.) Petitioner asked the court to reconsider its ruling and instead remand for
a retrospective evidentiary hearing contemplated by Klessig. The supreme court denied
petitioner’s motion in summary fashion. (Dkt. # 7, Exh. 18.) In a dissent from that

14

order, Chief Justice Shirley Abrahamson argued that the supreme court’s decision
violated Imani’s “rights of notice and adversary counsel on appeal,” arguing that “[d]ue
process requires ... the court request additional briefing.”

OPINION
Petitioner now seeks relief from his conviction pursuant to 28 U.S.C. § 2254,
raising two issues. First, petitioner contends that his conviction was obtained in violation
of his right to self-representation as set forth in Faretta v. California, 422 U.S. 806 (1975).
Second, he argues that the Wisconsin Supreme Court denied him due process by
upholding his conviction on an issue that was not presented in the State’s petition for
review. For reasons outlined in more detail below, the court does not address the second
issue because the first is dispositive.

I.

Standard of Review
In his petition for relief pursuant to 28 U.S.C. § 2254, Imani raises the same claim

adjudicated by the circuit court on collateral review and by the Wisconsin Court of
Appeals. When a state system issues multiple decisions, a federal habeas corpus court
typically considers “the last reasoned opinion on the claim.” Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991); see also Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012) (unless a
state court adopts or incorporates the reasoning of a prior opinion, 28 U.S.C. § 2254
requires federal courts to review one state decision) (citation omitted). To the extent

15

that the Wisconsin Supreme Court addressed petitioner’s claims on the merits, he must
show that its adjudication -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.
28 U.S.C. § 2254(d)(1)-(2).
The standard outlined in § 2254(d)(1) is exacting and “highly deferential.” Burt v.
Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013); see also Harrington v. Richter, — U.S. —, 131
S. Ct. 770, 786 (2011) (emphasizing that state court decisions must be given “the
benefit of the doubt”). Even so, it is not insurmountable. Id. A state court’s decision is
deemed contrary to clearly established federal law if it reaches a legal conclusion in direct
conflict with a prior decision of the United States Supreme Court or reaches a different
conclusion than that Court based on materially indistinguishable facts. See Williams v.
Taylor, 529 U.S. 362, 404-08 (2000).

A state court unreasonably applies clearly

established precedent if it identifies the correct governing legal principle but
unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S.
133, 141 (2005).
Factual determinations made by the state courts are also entitled to “great
deference.” Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012).

For purposes of

§ 2254(d)(2), a state court’s factual finding is never unreasonable “merely because the
federal habeas court would have reached a different conclusion in the first instance.”

16

Wood v. Allen, — U.S. —, 130 S. Ct. 841, 849 (2010). Rather, a state court decision
involves “an unreasonable determination of the facts” under § 2254(d)(2) only when the
state court makes an “unreasonable error in light of the evidence presented to that
court.” Collins v. Gaetz, 612 F.3d 574, 586 (7th Cir. 2010) (citing Ward v. Sternes, 334
F.3d 696, 703–04 (7th Cir. 2003)). Findings of fact are otherwise presumed correct
unless the petitioner meets the burden of rebuttal “by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
II.

The Sixth Amendment Right of Self-Representation
The Sixth Amendment guarantees in relevant part that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. United States Supreme Court precedent teaches
that “the Sixth Amendment grants a defendant the right to have counsel present at all
‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786
(2009) (quoting United States v. Wade, 388 U.S. 218, 227-28 (1967); Powell v. Alabama,
287 U.S. 45, 57 (1932)). Nevertheless, it is “beyond doubt that the Sixth Amendment
right to counsel may be waived by a defendant, so long as the relinquishment of the right
is voluntary, knowing, and intelligent.”

Montejo, 556 U.S. at 786 (citing Patterson v.

Illinois, 487 U.S. 285, 292 n. 4 (1988); Brewer v. Williams, 430 U.S. 387, 404 (1977);
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Thus, the Supreme Court has recognized
that the Sixth Amendment includes a competent criminal defendant’s right to represent
himself at trial. See Faretta v. California, 422 U.S. 806, 835-36 (1975).

17

Because an accused who elects to represent himself relinquishes the traditional
benefits associated with the right to counsel, the court must assure that a defendant’s
waiver of that right is a knowing and intelligent one. Faretta, 422 U.S. at 835 (citing
Johnson, 304 U.S. at 464-65). “Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently to choose selfrepresentation, he should be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that ‘he knows what he is doing and his
choice is made with eyes open.’” Id. (quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 279 (1942)). Accordingly, once a defendant unequivocally invokes the right of
self-representation, whether expressly or constructively, the court must hold a hearing
hearing to ensure defendant’s request to proceed without counsel is knowing and
voluntary. See Faretta, 422 U.S. at 835-36.
The Supreme Court has since clarified that this so-called Faretta hearing requires a
two-prong inquiry: (1) whether the defendant is competent to waive the right to counsel,
where competence might appear to be at issue; and (2) whether the defendant’s “waiver
of his constitutional rights is knowing and voluntary.” Godinez v. Moran, 509 U.S. 389,
400-01 (1993). The level of competency required of a defendant to waive the right to
counsel is the same as the level of competency required of a defendant to stand trial. Id.
at 399. Accordingly, a defendant’s “technical legal knowledge” is “not relevant” to the
competency determination. Id. at 400 (quoting Faretta, 422 U.S. at 836).

18

Moreover, a court’s erroneous denial of the right to self-representation is not
subject to harmless-error analysis; it requires automatic reversal of a criminal conviction.
McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984) (“Since the right of selfrepresentation is a right that when exercised usually increases the likelihood of a trial
outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’
analysis. The right is either respected or denied; its deprivation cannot be harmless.”).
III.

Petitioner’s Sixth Amendment Claim
Imani makes two principal arguments in support of his request for relief under the

Sixth Amendment. First, petitioner argues that the Wisconsin Supreme Court erred as a
matter of fact in upholding the trial court’s finding that Imani did not make a deliberate
choice to proceed without counsel and was unaware of the difficulties of selfrepresentation. (Dkt. # 15, at 6-12). Second, Imani argues because the facts of his case
are “indistinguishable” from Faretta, the Wisconsin Supreme Court’s decision is contrary
to clearly established United States Supreme Court precedent. (Dkt. # 15, at 16-18.)
The court disagrees on both counts.
A. Knowing and Intelligent Waiver
As to Imani’s first argument, this court is bound to give “great deference” to the
factual findings of the state court, even if it would have reached a different conclusion.
The circuit court deemed Imani’s assertion of his right of self-representation to be no
more than an “immature” response by a “disgruntled” litigant following the defeat of his

19

motion to suppress. While the state court of appeals disagreed, the Wisconsin Supreme
Court adopted the circuit court’s findings.

To the extent that the trial court found

Imani’s request to represent himself was a “flippant” choice, not a deliberate one, that
finding is a close one. The record reflects that Imani was dissatisfied not only with his
attorney’s handling of the suppression hearing, but also with his failure to investigate the
fingerprint evidence. (Dkt. # 7, Exh. 19, at 31)(“he has been telling me he is going to do
something about for the last 40 or 50 days, which he hasn’t done nothing about it”).
Imani also believed that his attorney would not question witnesses adequately. (Id. at
35.) Imani further advised the circuit court that he had been “working on” his case for
thirteen months and, after observing his appointed attorney’s efforts at the pretrial
hearing, was convinced that he could do at least as well. (Id. at 33.) Well before the
pretrial hearing, Imani’s cousin and co-defendant, Raziga Imani, had also requested and
received leave to represent himself with the assistance of stand-by counsel. Before the
circuit court cut him off, Imani even appears to indicate that he had been “planning” to
make a similar request. (Id. at 39.) Thus, it would have been reasonable to infer that
Imani’s request was not lightly made, but was the product of deliberate consideration. At
the least, the request appears to have been made unequivocally.
Still, this court cannot say that the trial court’s finding that Imani’s request was
reflexive, rather than knowing and intelligent, was an unreasonable determination of the
facts before it. See 28 U.S.C. § 2254(d)(2). As an initial matter, Imani had apparently
never made a request to proceed pro se before the hearing. At the hearing, the trial court

20

was obviously in the best position to judge Imani’s demeanor.

The circumstances

surrounding Imani’s request support that court’s factual assessment immediately after
losing an important, perhaps dispositive, motion as disgruntled and disappointed, as well
as to judge his request as reflexive, rather than the thoughtful crystallization of an earlier
knowing intelligent decision to go it alone.

As importantly, despite being expressly

invited to do so, Imani never raised the issue again until convicted.
Moreover, the circuit court had good reason to press Imani -- less than a month
before trial and after going through “several” appointed counsel -- before allowing him
suddenly to begin representing himself in a multiple-defendant criminal jury trial,
especially when his codefendant had been given permission to go it alone some months
before.

Certainly, once Raziga pled guilty, petitioner had a stronger case for being

allowed to proceed pro se, even at the last minute, but petitioner’s failure to renew his
request more formally, after deliberation and thought, further supports the circuit court’s
original finding that petitioner’s abrupt, impromptu request was not a knowing or
intelligent one.
B. Facts of Faretta
Second, Imani argues the state court’s denial of his request to proceed pro se is
factually indistinguishable to Faretta. Notably, the defendant in Faretta requested
permission to proceed pro se because he was dissatisfied with appointed counsel.

See

Faretta, 422 U.S. at 807 (noting that Faretta wanted to represent himself instead of
having a public defender, who he believed was “very loaded down with . . . a heavy case

21

load’”). Of course, dissatisfaction with appointed counsel is not uncommon. As the
Third Circuit Court of Appeals noted in another case:
almost all requests for pro se representation will arise from dissatisfaction
with trial counsel. It is the rare defendant who will ask to proceed pro se
even though he/she is thoroughly delighted with counsel’s representation,
ability, and preparation. Thus, that a defendant wishes to proceed without
representation is not usually relevant to whether the defendant’s request is
clear and unequivocal.
Alongi v. Ricci, 367 F. App’x 341, 346-47 (3d Cir. 2010); see also Batchelor v. Cain, 682
F.3d 400, 408 (5th Cir. 2012) (noting that defendant’s expression of dissatisfaction with
appointed counsel could not be said to detract from the clarity of his Faretta motion).
In this case, the state does not appear to dispute that Imani’s request for leave to
proceed pro se was clearly and unequivocally made. In this respect, the present case is
similar to Faretta, which also involved a request for self-representation only “weeks before
trial.”
Assuming petitioner’s assertion of the right to represent himself one month before
trial was clear and unequivocal, it triggered a Sixth Amendment obligation by the trial
court to make Imani “aware of the dangers and disadvantages of self-representation” so
that the record would establish that his choice to waive the right to counsel was
voluntarily and intelligently made. Faretta, 422 U.S. at 835; see also Patterson v. Illinois,
487 U.S. 285, 299 (1988) (“we require a more searching or formal inquiry before
permitting an accused to waive his right to counsel at trial than we require for a Sixth
Amendment waiver during postindictment questioning”); United States v. Sandles, 23 F.3d
1121, 1127 (7th Cir. 1994). But this is more a protection against an uninformed waiver

22

of the right to counsel, than it is a protection from retaining one’s Sixth Amendment
right to counsel.3
Here, the trial judge asked a few questions about Imani’s education and experience
with the legal system, but made no inquiry about whether he understood the
disadvantages of dispatching trained counsel. In that regard, there was no discussion
about the seriousness of the charges, the penalties or range of punishment that could be
imposed, or the drawbacks or difficulties that Imani would face in the event that he
proceeded pro se. Instead, the judge found petitioner’s request precipitous, rash and the
immediate reaction to his disappointment with an adverse evidentiary ruling, rather than
a knowing waiver. Again, this court is not allowed to second guess that factual finding, at
least where there is support for it in the record.
On the other hand, the trial judge appears to have denied the motion, at least in
part, based on the belief that Imani lacked sufficient education or experience to proceed
alone.

This finding would appear to violate the right to self-representation found in

Faretta. See Moore v. Haviland, 531 F.3d 393, 402-03 (6th Cir. 2008) (“For the judge not
to have engaged in a Faretta-compliant colloquy upon reading the [defendant’s written
request to proceed pro se] was an unreasonable application of Faretta.”). So long as he is
competent to stand trial, the defendant has a right under Faretta to insist that he be
allowed to represent himself. Godinez, 509 U.S. at 400 (noting that the standard for

In Faretta, the defendant was forced to proceed to trial with appointed counsel from the
public defender’s office, while in Klessing, the defendant represented himself after his
appointed attorney withdrew and the circuit court refused to appoint another.
3

23

competency to waive right to counsel is same as competency to stand trial and that
defendant’s lack of technical legal knowledge is irrelevant to right to self-representation);
accord Faretta, 422 U.S. at 835-36.
The government argues that the state court’s decision should be upheld because
Wisconsin has long observed a “heightened standard” of competency for pro se
defendants, which the Seventh Circuit has already determined to be constitutionally
permissible under Godinez. Brooks, 380 F.3d at 1011-13. Accordingly, courts may prevent
defendants who are mentally competent to stand trial from proceeding pro se if they
“lack[] the capacity” to do so:
Surely a defendant who, while mentally competent to be tried, is simply
incapable of effective communication or, because of less than average
intellectual powers, is unable to attain the minimal understanding
necessary to present a defense, is not to be allowed to go to jail under his
own banner. Neither the state, nor the defendant, is in any sense served
when a wrongful conviction is easily obtained as a result of an
incompetent defendant’s attempt to defend himself. Thus, despite the fact
that a defendant has been found competent to stand trial, it may
nevertheless be determined that he lacks the capacity to represent himself.
Pickens, 96 Wis. 2d at 568 (citations and quotations omitted). The Wisconsin Supreme
Court relied on this heightened standard in concluding that Imani lacked the requisite
competence to represent himself. See Imani, 2010 WI 66, ¶ 36, 326 Wis. 2d at 205.
This argument appears to miss the extent of a defendant’s right to proceed pro se.
As the Wisconsin Supreme Court previously recognized in both Pickens and Klessig, “the
competency determination should not prevent persons of average ability and intelligence
from representing themselves unless ‘a specific problem or disability can be identified

24

which may prevent a meaningful defense from being offered, should one exist.’” Klessig,
211 Wis. 2d 194, ¶ 24 564 N.W.2d at 724 (quoting Pickens, 96 Wis. 2d at 569). In this
case, Imani’s mental competence was never put in question. As the court of appeals
noted, the trial court “identified no specific problem or disability which might
significantly affect [Imani’s] ability to communicate a meaningful defense.” Imani, 2009
WI App 98, ¶ 17, 771 N.W.2d at 384. If anything, the record indicates that petitioner
was both articulate and capable of expressing arguments concerning his defense; the
record certainly does not disclose any issue with his mental capacity or his ability to
comprehend the consequences of going to trial without trained legal counsel. To the
extent that the circuit court believed that petitioner would be unable to adequately
represent himself due to mere lack of education, experience or legal training, it
improperly imposed additional criteria for determining whether a federal constitutional
right was validly waived.
An accused’s right to defend himself at trial is “fundamental.” Faretta, 422 U.S. at
817. Where a defendant has properly asserted his right to represent himself and to waive
his Sixth Amendment right to counsel, a court must permit the defendant to proceed
without a lawyer so long as he possesses the requisite mental competency and has been
made aware of the dangers and disadvantages of proceeding without trained counsel.
Imani asserted his right, and the circuit court failed to honor that right.
Unfortunately for Imani, however, this is only the first of two factual hurdles he
must clear to establish his request was indistinguishable from Faretta. As the United

25

States Supreme Court held in Godinez, Imani must also have waived his right to counsel
“knowingly and voluntarily.” 509 U.S. at 401. Unlike the facts in Faretta, the trial judge
here had ample reason to find that Imani was acting reflexively, without appropriate
deliberation, and therefore could not waive his right to counsel knowingly, at least at that
time. For the reasons discussed above, this court must defer to that finding.
In contrast, the Faretta court had actually granted Faretta’s request to represent
himself “[w]ell before trial” after questioning in open court and subject to reversal “if it
later appeared that Faretta was unable adequately to represent himself.” 422 U.S. at
807-08.

“Several week thereafter, but still prior to trial, the judge sua sponte held a

hearing to inquire into Faretta’s ability to conduct his own defense, and questioned him
specifically about both the hearsay rule and the state law governing the challenge to
potential jurors.” Id. at 808 & n.3. Apparently dissatisfied with Faretta’s answers, the
judge then revoked what he found was Faretta’s “privilege,” rather than right, to
represent himself. Id. at 808-10 & n.4.
Moreover, unlike Faretta, the trial judge here stated expressly that he was not
closing the door on Imani’s request, should he choose to renew it after appropriate
deliberation.

In contrast, the Faretta court essentially foreclosed any possibility of

revisiting sua sponte his decision after finding that the defendant lacked “a constitutional
right to represent himself,” as well as could not have an intelligent and knowing waiver of
“[t]hat privilege.” 422 U.S. at 808-11 & n.4.

26

Having acted in a manner that the trial court expressly found rash, ignoring the
court’s invitation to renew his request after he calmed down and having chosen not to do
so, the facts here are certainly distinguishable from Faretta. Accordingly, Imani’s petition
for habeas relief pursuant to 28 U.S.C. § 2254 will be denied.
IV.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue

or deny a certificate of appealability when entering a final order adverse to petitioner. A
certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, this requires a petitioner to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Miller-El, 537 U.S. at 336. Where denial of relief is based on
procedural grounds, the petitioner must show not only that “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional
right,” but also that they “would find it debatable whether the district court was correct
in its procedural ruling.” Slack, 529 U.S. at 484.

27

Although the rule allows a court to ask the parties to submit arguments on
whether a certificate should issue, it is not necessary to do so in this case.

For the

reasons already stated, the court concludes that Imani has made a substantial showing
that his conviction may have been obtained in violation of clearly established federal law
as decided by the Supreme Court, namely, the right to self-representation found in
Faretta v. California, 422 U.S. 806 (1975).

Although a majority of the Wisconsin

Supreme Court concluded that Imani’s waiver of the right to counsel satisfied the
protections supplied by state law in State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716
(1997), three justices believed that the circuit court’s colloquy was insufficient to
evaluate or validate Imani’s invocation of the right to self-representation. See State v.
Imani, 2010 WI 66, ¶¶ 41-78, 326 Wis.2d 179, 208-226, 786 N.W.2d 40, 54-64
(Crooks, J., concurring in part, dissenting in part).4

While ultimately finding it

distinguishable, this court also finds the issue a close one under Faretta.

Because

reasonable jurists could debate whether a different result was required, the court will
grant a certificate of appealability on this issue.
ORDER
IT IS ORDERED that:
1. The petition filed by Rashaad A. Imani for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED and this case is DISMISSED with
prejudice. The clerk of court is directed to enter judgment for respondent
and close this case.
The concurring/dissenting opinion by Justice Crooks was joined by Chief Justice Shirley S.
Abrahamson and Justice Ann Walsh Bradley.
4

28

2. A certificate of appealability is GRANTED.
Entered this 29th day of Septembr, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

29