                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

Wilkerson v. Klem
Precedential or Non-Precedential: Precedential

Docket No. 03-2842




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                                   PRECEDENTIAL


     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 03-2842


          MELVIN E. WILKERSON,
                Appellant

                      v.

          EDWARD KLEM;
ATTORNEY GENERAL OF PENNSYLVANIA




On Appeal From the United States District Court
   For the Middle District of Pennsylvania
     (D.C. Civil Action No. 01-cv-01501)
    District Judge: Hon. James M. Munley


          Argued December 14, 2004

BEFORE: AMBRO, VAN ANTWERPEN and
      STAPLETON, Circuit Judges
               (Opinion Filed: June 28, 2005)




Mary Gibbons, Esq. (Argued)
600 Mule Road
Holiday Plaza III
Toms River, NJ 08757
 Attorney for Appellant

James P. Barker, Esq. (Argued)
Francis T. Chardo, Esq.
Deputy District Attorney
Dauphin County Courthouse
Front & Market Streets
Harrisburg, PA 17101
 Attorney for Appellee




                OPINION OF THE COURT




STAPLETON, Circuit Judge:

      In this habeas corpus proceeding brought pursuant to 28
U.S.C. § 2254, Appellant Wilkerson claims that the state trial

                              2
court wrongfully deprived him of his Sixth Amendment right to
counsel. The District Court considered whether the state court’s
decision rejecting that claim was contrary to, or an unreasonable
application of, Supreme Court precedent and concluded that it
was not. We agree and will affirm.

                               I.

        Wilkerson was charged in a Pennsylvania court with
retail theft and robbery of a motor vehicle. At a March 16,
1998, hearing, he informed the court that he wanted his current
counsel to “step down,” and the court allowed counsel to
withdraw. App. at 42-43. It then set April 13, 1998, as
Wilkerson’s trial date and advised him as follows:

       Now, Mr. Wilkerson, that’s your new trial date.
       That’s less than 30 days. You can’t get a lawyer
       on April 12 and expect him to know how to
       handle your case the next day. You need to get a
       lawyer within the next several days so that that
       lawyer will have an opportunity to engage in
       discovery with the District attorney, to evaluate
       your case, interview witnesses, interview you, and
       that takes a lot of time. There isn’t much time.

       So we will proceed with your trial on April the
       13th. You or your family has to get busy and hire
       a lawyer within the next several days.

       I guess I ought to also tell you that if you can’t
       afford private counsel, you have the right to the

                               3
       free services of the Public Defender’s Office. So
       if you can’t come up with the money, I would say
       by the end of this week, you’d better be going to
       the Public Defender then right away.

App. at 45-46.

       Wilkerson appeared on April 13, 1998, without counsel
for the charges to be tried that day, although an attorney from
the Public Defender’s Office who was representing him on
another charge happened to be present. Wilkerson advised the
court that his family was in the process of trying to engage a
lawyer, but he had not yet heard whether they had been
successful. The court decided to proceed to trial and appointed
the attorney from the Public Defender’s Office as stand-by
counsel to assist Wilkerson in his self-representation. The court
explained its decision as follows:

       I made it very clear to you when we continued
       this case last term in March when Mr. Dils was
       standing by your side, that you would need new
       counsel.

                             ***

       You knew this case was coming up today. You
       knew you needed an attorney, and I don’t know
       why you didn’t apply for one.

       We’re not going to delay the system, delay justice,
       and inconvenience witnesses while you fool

                               4
       around in deciding to get an attorney or not.

       It doesn’t make any sense that your family is
       looking for a lawyer for you on one charge, and at
       the same time you’re applying for a public
       defender in another case. You can afford counsel
       or you can’t.

       If you can’t afford counsel, you should have gone
       to the Public Defender’s Office for this charge as
       well as the other. I think you’d qualify since
       you’re under a state prisoner sentence right now,
       but be that as it may, we’re taking this case to
       trial.

App. at 52-53.

       Following his conviction, Wilkerson appealed to the
Superior Court of the Commonwealth of Pennsylvania, arguing
inter alia that he had been denied his right to counsel. The
Superior Court affirmed, concluding that Wilkerson had
“forfeited” his right to counsel. In the court’s view, Wilkerson’s
case was governed by Commonwealth v. Wentz, 421 A.2d 796
(Pa. Super. Ct. 1980), where it had held as follows:

       “. . . a criminal defendant who has been duly
       notified of the date of his trial, and who has been
       advised to obtain counsel to represent him and
       who, nevertheless, appears in court on the
       scheduled date without counsel and with no
       reasonable excuse for the lack thereof and no

                                5
       concrete plans for the obtaining of counsel has
       waived his right to counsel.”

App. at 36 (quoting Wentz, 421 A.2d at 800). While the
Superior Court quoted this passage from Wentz cast in terms of
“waiver,” it made clear that this was a case in which the
defendant had forfeited his right to counsel by his conduct and
not one involving a voluntary waiver of that right.

      The Supreme Court of Pennsylvania declined to review
Wilkerson’s case. The District Court denied him habeas relief,
and we granted a certificate of appealability only on the issue of
whether Wilkerson had been denied his right to counsel.

                                II.

        Under provisions of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), habeas
corpus relief from a state conviction may be granted only if the
state court decision being challenged “was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States.” In Williams v. Taylor, 529 U.S. 362 (2000), the
Supreme Court clarified these two bases for invalidating a state
conviction on habeas review. It held that “contrary to . . . clearly
established federal law” means just that – “diametrically
different, opposite in character or nature, or mutually opposed.”
Id. at 405. Moreover, the state court judgment must not merely
be contrary to law as articulated by any federal court. It must
contradict “clearly established” decisions of the United States


                                 6
Supreme Court alone.1 Id. This can happen in one of two ways:
either the state court ignores or misapprehends clear precedent
or it “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court]
precedent.” Id. at 406.

        The Court in Williams further explained that an
“unreasonable application” of Supreme Court precedent occurs
when a state court applies the correct rule to specific facts in an
objectively unreasonable way. Id. at 409; see also Mitchell v.
Esparza, 540 U.S. 12, 17-18 (2003). A court that unreasonably
extends an established rule to a new context where it should not
apply or, in the alternative, unreasonably fails to extend such a
rule to a new context where it should apply may be deemed to
have unreasonably applied the correct rule. Williams, 529 U.S.
at 407.

       These governing rules were recently applied by our Court
in a context similar to this one in Fischetti v. Johnson, 384 F.3d
140 (3d Cir. 2004). There, a state court denied Fischetti’s
motion for the appointment of new counsel, finding that the
previously appointed counsel was providing effective


   1
   At the end of the day, AEDPA “confines the authorities on
which federal courts may rely” in a habeas case to Supreme
Court decisions. Lewis v. Johnson, 359 F.3d 646, 652 (3d Cir.
2004); see also Dunn v. Colleran, 247 F.3d 450, 457 (3d Cir.
2001); Hameen v. Delaware, 212 F.3d 226, 234-43 (3d Cir.
2000) (analyzing Supreme Court cases).

                                7
representation. The court gave Fischetti three options: continue
to trial with present counsel representing him, represent himself
with present counsel assisting as co-counsel, or represent
himself without co-counsel. When Fischetti declined all three
options, the court ordered the trial to go forward with Fischetti
representing himself. Following conviction and direct appeal,
Fischetti sought habeas relief in the federal courts.

        On appeal from the District Court’s dismissal of his
habeas petition, this Court began its analysis by cautioning that
“at the outset, we must articulate the issue presented to the state
court precisely.” Id. at 150. It then framed the issue as whether
Fischetti, by his conduct, had forfeited his Sixth Amendment
right to counsel:

       Here, Fischetti refused to make a choice between
       proceeding with current counsel and proceeding
       pro se. Effectively, he sought to defeat the trial
       court’s denial of his motion for yet another new
       counsel. In essence, the state court treated him
       not as if he had waived the right to his attorney
       but as having forfeited that right. See Goldberg,
       67 F.3d at 1101-01. We must therefore examine
       whether there is “clearly established” Supreme
       Court law on forfeiture of the right to counsel.

Id. at 150.

       Having thus defined the issue, we quickly concluded that
the state court’s ruling was not “contrary to . . . clearly
established” Supreme Court law within the meaning of 25

                                8
U.S.C. § 2254(d)(1):

             [T]he Court’s established precedent in this area
             has not expressly dealt with the matter of
             forfeiture of counsel, which is the exact issue
             here. As we have discussed, forfeiture and
             voluntary waiver are conceptually separate.
             Moreover, the Supreme Court’s prior decisions
             have not involved facts that are “materially
             indistinguishable” from the facts surrounding
             Fischetti’s actions in this case. See Williams, 529
             U.S. at 406, 120 S.Ct. 1495; Moore, 255 F.3d at
             107. It follows that the state court ruling here was
             not contrary to federal law as articulated by
             decisions of the Supreme Court.

Id.

        We then turned to the issue of whether the state court had
unreasonably applied Supreme Court precedent.               Based
primarily on Supreme Court cases involving the constitutional
right to self-representation,2 we predicted that the Supreme
Court would hold that Fischetti had not forfeited his right to
counsel. We indicated that, if we were reviewing a federal
conviction, we would rule that the trial court erred in not
directing the trial to go forward with him being represented by
his then present counsel. We stressed, however, that this was
not a permissible approach in reviewing a state court conviction:


      2
          See, e.g., Martinez v. California, 528 U.S. 152, 161 (2002).

                                      9
       [I]f our rule on habeas review were to determine
       if the state judge properly extrapolated the general
       principles that can be derived from Faretta,
       Patterson, and Martinez to this different factual
       setting, we might disagree with the state court
       ruling.

               That is not our role. In reviewing the
       reasonableness of the state courts’ application of
       Supreme Court precedent, we must use as our
       point of departure the specific holdings of the
       Court’s decisions. When assessing whether the
       state court acted reasonably in applying or
       refusing to apply that precedent, we must be
       mindful that the issue is whether Supreme Court
       law “dictated” a result in our case, Teague, 489
       U.S. at 301, 109 S.Ct. 1060 (plurality); see
       Moore, 255 F.3d at 104-05, or whether the
       circumstances presented here were “closely
       analogous” to those that formed the basis of
       earlier high court decisions, Penry, 492 U.S. at
       314, 109 S.Ct. 2934 (internal quotations and
       citations omitted).

Id. at 150-51.

       Once our analysis in Fischetti was confined to “specific
holdings” of Supreme Court decisions and to asking whether
those holdings and “closely analogous” circumstances
compelled a result contrary to that reached by the state court, we
could find no Supreme Court precedent that could be fairly cited

                               10
as rendering the state court’s decision unreasonable. We noted
that “the Supreme Court [had not] expressly ruled out forfeiture
of counsel.” Id. at 151. On the contrary, we observed that the
Supreme Court precedents, while not dealing with forfeiture of
the right to counsel, provided a “basis to conclude, as the state
judge did, that defiant behavior by a defendant can properly cost
that defendant some of his Sixth Amendment protections if
necessary to permit a trial to go forward in an orderly fashion.”
Id. at 151 (citing Taylor v. United States, 414 U.S. 17 (1974)
(holding that, following failure of the defendant to return from
recess, “the trial could continue because the court’s power to try
a case ‘may not be defeated by conduct of the accused that
prevents the trial from going forward’”); and Illinois v. Allen,
397 U.S. 337 (1970) (holding that, following disruptive
behavior and after being warned by a judge, a defendant could
be excluded from the courtroom to allow the trial to proceed)).
We then went on to note that “additional support for the
reasonableness of the state court’s application of Supreme Court
precedent” could be found in our own decisions and those of
other Courts of Appeals. Id. at 151. We summarized that case
law as follows:

               None of these cases approves the specific
       decision made by the trial judge here. But the
       appellate cases do establish that the Supreme
       Court’s general right to counsel decisions are
       reasonably read as qualified by the trial court’s
       power to remedy abuse of that right through
       forfeiture. Further, none of these cited appellate
       cases saw in the Supreme Court’s precedents any
       clear guidance as to the precise standard to be

                               11
       applied before forfeiture can be triggered. Put
       another way, the Supreme Court has not fully
       defined when a defendant’s misconduct or
       defiance warrants a forfeiture. Our canvass of
       decisions of our own and sister courts reinforces
       our view that the state court order that Fischetti
       proceed without counsel was not an objectively
       unreasonable application of Supreme Court case
       law under the Sixth Amendment.

Id. at 152.

        Applying the analysis and rationale of Fischetti to this
case, we reach a similar conclusion. The precise issue presented
to the state court in this case was whether a criminal defendant
who has been duly notified of the date of his trial, who has been
advised to obtain counsel in sufficient time to be ready for trial,
and who appears on the scheduled date without counsel and with
no reasonable excuse for his failure to have counsel present,
forfeits his Sixth Amendment right to counsel.

        Turning to the first prong of § 2254(d)(1), there is no
Supreme Court precedent dealing with the forfeiture of counsel,
and no prior decision of that Court involves facts “materially
indistinguishable” from those presented here. Accordingly, the
state court decision we review is not “contrary to . . . clearly
established” Supreme Court law.

       With respect to whether the decision we review involves
an unreasonable application of clearly established Supreme
Court law, we emphasize, as did the Fischetti Court, that “we

                                12
must use as our point of departure the specific holdings of the”
Supreme Court. Id. at 151. It remains true that there are no
Supreme Court decisions involving forfeiture of the right to
counsel and a fortiori no decisions providing any clear guidance
as to the “standard to be applied before [it can be concluded
that] a defendant’s misconduct warrants a forfeiture.” Id. at
152. It necessarily follows that the state court’s decision here
was not an unreasonable application of Supreme Court
precedent.

       While, as we have noted, court of appeals precedent is
irrelevant to the ultimate issue before us, we note that here, as in
Fischetti, a review of those cases provides a basis for the view
taken by the state court in this case. We explained in Fischetti,
for example:

       In United States v. Goldberg, 67 F.3d 1092 (3d
       Cir. 1995), we explained that a defendant could
       lose the right to counsel by physically assaulting
       his attorney or (in the case of a financially able
       defendant) refusing to retain any counsel in the
       first place. We apply this rule of forfeiture not to
       punish defendants but to preserve the ability of
       courts to conduct trials.

                               ***

               Other circuits have also interpreted
       Supreme Court decisions to be consistent with
       forfeiture of the right to counsel. These cases
       have interpreted the law to require defendants to

                                13
       go to trial unrepresented when they have failed to
       hire counsel within a reasonable time, United
       States v. Bauer, 956 F.2d 693 (7th Cir. 1992);
       United States v. Mitchell, 777 F.2d 248 (5th Cir.
       1985).

Id. at l46, 152 (emphasis added).

        Our colleague writing in dissent correctly observes that
the “unreasonable application” segment of § 2254(d)(1)
authorizes habeas relief from a state judgment “if, under clearly
established [Supreme Court] law, the state court was
unreasonable in refusing to extend a governing legal principle
to a context in which the principle should have controlled” or
unreasonably extended that principle to a situation in which it
should not have controlled. Ramdass v. Angelone, 530 U.S. 156
(2000) (plurality opinion). Our colleague finds this significant
because, in his view, Wilkerson did not engage in any “serious
misconduct” or, more specifically, because “Wilkerson did not
act in a way that our Supreme Court has held leads to a finding
of forfeiture of constitutional rights generally or that the lower
courts have subsequently held leads to a finding of forfeiture of
the right to counsel specifically.” Dissenting Op. at 10.

        The dissent’s analysis ignores the fact that the
unreasonable extension doctrine still requires reference to a
specific “legal principle from the Supreme Court.” Gattis v.
Snyder, 278 F.3d 222, 228 (3d Cir. 2002). No Supreme Court
precedent exists to support the position that the type of “serious
misconduct” described in the dissent is “necessary to find
forfeiture of a constitutional right.” Dissenting Op. at 13.

                               14
Indeed, our colleague concedes that no clear forfeiture standard
can be found in Supreme Court precedent or in the decisions of
lower appellate courts. Id. at 9. The dissent goes on, however,
to express the belief that circuit court forfeiture decisions
“contain common factors from which the principle can be
gleaned that the federal appellate courts will not find a forfeiture
absent a defendant’s defiant behavior. . . .” Id. (emphasis
added).

        Even if this Court could glean from federal circuit court
precedents a serious misconduct forfeiture standard which does
not encompass Wilkerson’s behavior in this case, that does not
compel the conclusion that the state court’s forfeiture finding
was an objectively unreasonable application of Supreme Court
precedent under section 2254. Because no clear forfeiture
standard has been articulated by the Supreme Court, it cannot be
said that the state court in this case acted unreasonably when it
found forfeiture, even though Wilkerson’s actions fell short of
the sort of “extremely serious misconduct” that this Court found
present in United States v. Leggett, 162 F.3d 237 (3d Cir. 1998),
and Goldberg, 67 F.3d at 1102. It is not sufficient to say that
Wilkerson’s actions did not rise to the level of conduct that has
constituted forfeiture in the past; the issue is whether the state
court’s application of forfeiture to Wilkerson’s case was
precluded by Supreme Court precedent. In this regard, we
re-state our position in Fischetti that the Supreme Court’s
holdings in Illinois v. Allen, 397 U.S. 337 (1970), and Taylor v.
United States, 414 U.S. 17 (1973), provide state courts with a
“basis to conclude” that certain obstructive conduct by a
defendant may constitute a forfeiture of Sixth Amendment
protections. Fischetti, 384 F.3d at 151.

                                15
        As we stressed in Fischetti, “forfeiture and voluntary
waiver are conceptually separate,” and the dissent’s waiver
precedents are beside the point. Allen and Taylor are of interest
to the extent they recognize that a criminal defendant may forfeit
other important constitutional rights by engaging in conduct that
has the potential of “prevent[ing] the trial from going forward.”
Fischetti, 384 F.3d at 151. But the issue and facts involved
there are no closer to those here than to those in Fischetti. They
certainly do not compel a conclusion that a trial judge must
abort a scheduled trial under the facts presented here.

       With respect to whether or not the state court could
reasonably apply the Supreme Court’s forfeiture analysis from
Allen and Taylor to Wilkerson’s case, we perceive no material
difference between the potential for trial disruption presented
here and in Fischetti. Whether there is such a material
difference might present a litigable issue – one on which
reasonable minds could differ, but that would be relevant only
to whether our panel is bound by Fischetti. It has nothing to do
with whether the state court’s decision was an unreasonable
application of established Supreme Court law.

                               III.

       The judgment of the District Court will be affirmed.




                               16
AMBRO, Circuit Judge, Dissenting
        I agree with my colleagues in the majority that the
Pennsylvania decision in this case was not contrary to clearly
established federal law because there is no Supreme Court
precedent addressing forfeiture of the right to counsel.
However, I part with my colleagues on the issue of whether that
decision—that Melvin Wilkerson forfeited his right to
counsel—was an unreasonable application of Supreme Court
precedent on forfeiture of constitutional rights. I believe that the
state court unreasonably extended the Court’s forfeiture
precedent to Wilkerson’s case instead of applying the
appropriate analytical rubric—precedent on waiver of the right
to counsel. I therefore respectfully dissent.
        A.     Unreasonable Extension of Forfeiture Precedent
        If we determine, as we have in this case, that a state court
decision is not contrary to applicable Supreme Court precedent,
we must “advance to the second step in the [habeas]
analysis—whether the state court decision was based on an
‘unreasonable application of Supreme Court precedent.’” 3
Affinito v. Hendricks, 366 F.3d 252, 257 (3d Cir. 2004) (quoting
Werts, 228 F.3d at 196). This prong is met “‘if the state court
identifies the correct governing legal principle from [the
Supreme] Court’s decision but unreasonably applies that


   3
    We have previously emphasized that the “contrary to” and
“unreasonable application of” provisions of 28 U.S.C.
§ 2254(d)(1) must be given independent meaning. Werts v.
Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (noting that this point
was a focus of Justice O’Connor’s portion of the plurality
opinion in Williams v. Taylor, 529 U.S. 362 (2000)).

                                17
principle to the facts of the prisoner’s case.’” Id. (quoting
Williams, 529 U.S. at 413). As the majority opinion states, a
state court decision may also be found to be an unreasonable
application of Supreme Court precedent if “the state court either
unreasonably extends a legal principle from the Supreme Court
precedent to a new context where it should not apply or
unreasonably fails to extend that principle to a new context
where it should apply.” Gattis v. Snyder, 278 F.3d 222, 228,
234 (3d Cir. 2002) (citing Williams, 529 U.S. at 407).
       The “unreasonable extension” or “failure to extend”
approach to the unreasonable application prong of 28 U.S.C
§ 2254(d)(1) has not been fully fleshed out by the Supreme
Court. The Court stated in Williams that this approach, though
“perhaps [] correct[,] . . . does have some problems of
precision,” 4 and noted further that it was not required “to decide


     4
     Regarding the “problems of precision” inherent in this
approach, Justice O’Connor wrote:
             Just as it is sometimes difficult to
             distinguish a mixed question of law
             and fact from a question of fact, it
             will often be difficult to identify
             sep arately tho se state-c o u rt
             d e c i s io n s t h a t i n v o lv e a n
             unreasonable application of a legal
             principle (or an unreasonable
             failure to apply a legal principle) to
             a new context. Indeed, on the one
             hand, in some cases it will be hard
             to distinguish a decision involving

                                18
how such ‘extension of legal principle’ cases should be treated
under § 2254(d)(1).” 529 U.S. at 408–09 (discussing the Fourth
Circuit’s approach to the unreasonable application inquiry); see
also Marshall v. Hendricks, 307 F.3d 36, 51 n.2 (3d Cir. 2002)
(noting that the Supreme Court discussed but did not specifically
endorse the “extension of legal principle” approach in
Williams); Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir.
2004) (stating that the “Supreme Court has not fully fleshed out
this ‘extension of legal principle’ approach”).
        Soon after Williams was decided, however, Justice
Kennedy articulated the governing principles for analyzing the
unreasonable application prong of § 2254(d)(1) and stated: “A
state determination may be set aside under this standard if, under
clearly established federal law, the state was unreasonable in
refusing to extend the governing legal principle to a context in
which the principle should have controlled.” Ramdass v.



             an unreasonable extension of a
             legal principle from a decision
             involving an unreasonable
             application of law to facts. On the
             other hand, in many of the same
             cases it will also be difficult to
             distinguish a decision involving an
             unreasonable extension of a legal
             principle from a decision that
             arrives at a conclusion opposite to
             that reached by this Court on a
             question of law.
Williams, 429 U.S. at 408 (internal quotation omitted).

                               19
Angelone, 530 U.S. 156, 166 (2000) (plurality opinion). Our
Court and all but one of our sister Circuits have since
indicated—or expressly held—that the “extension of legal
principle” approach to the unreasonable application prong of the
habeas inquiry is a viable mode of analysis. See, e.g., Brinson
v. Vaughn, 398 F.3d 225, 232 (3d Cir. 2005) (stating that “‘a
state court decision fails the ‘unreasonable application’ prong .
. . if . . . the state court either unreasonably extends a legal
principle from the Supreme Court’s precedent to a new context
where it should not apply or unreasonably refuses to extend the
principle to a new context where it should apply.’” (quoting
Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003)
(internal quotation omitted))); Gibbs v. Frank, 387 F.3d 268,
272, 275 (3d Cir. 2004) (same); see also Jackson v. Coalter, 337
F.3d 74, 81 (1st Cir. 2003) (same); Kennaugh v. Miller, 289
F.3d 36, 45 (2d Cir. 2002) (noting that Williams and Ramdass
left open the question whether a state court’s failure to extend
clearly established Supreme Court precedent could constitute an
unreasonable application of clearly established federal law and
holding that it could); Tucker v. Catoe, 221 F.3d 600, 605 (4th
Cir. 2000) (stating that the unreasonable application prong is
met if the state court decision unreasonably extends or
unreasonably fails to extend Supreme Court precedent to a new
context); Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004)
(same); Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005)
(same); Owens v. Frank, 394 F.3d 490, 497 (7th Cir. 2005)
(same); Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001)
(same); Kesser v. Cambra, 392 F.3d 327, 336 (9th Cir. 2004)
(same); Carter v. Ward, 347 F.3d 860, 864 (10th Cir. 2003)
(same); but see Hawkins v. Alabama, 318 F.3d 1302, 1307 &
n.3, 1309 (11th Cir. 2003) (holding that “the question of when

                               20
a state court’s refusal to extend a legal principle would
constitute, under AEDPA, an unreasonable application of
federal law comes to us unsettled,” but that “[t]he refusal to
extend [the precedent at issue] to the facts of this case was
objectively reasonable” and noting, in a lengthy discussion of
the “extension of legal principle” approach, that state courts are
not required to widen or enlarge rules from Supreme Court
precedent in order for their decisions to be found objectively
reasonable).
        I believe that this case presents us with an opportunity to
apply the “unreasonable extension” approach that has been oft-
stated (but little used) by our Court and the other Courts of
Appeal because, in my view, the Commonwealth court here
unreasonably extended principles from the Supreme Court’s
forfeiture precedents to a new context where they should not
apply—i.e., a situation where the defendant had not engaged in
any serious misconduct or disruption of proceedings. The
Supreme Court has twice held that, in certain situations, a
criminal defendant may forfeit constitutional rights. See Illinois
v. Allen, 397 U.S. 337 (1970) (forfeiture of the right to be
present at trial); Taylor v. United States, 414 U.S. 17 (1973) (per
curiam) (same). Both of those cases involved defendants who,
through their misconduct, disrupted the orderly proceeding of
their trials.
        In Allen, the Court held that a defendant who had
repeatedly engaged in unruly behavior during his trial (including
threatening to turn the judge into a “corpse” and making other
abusive remarks, throwing his attorney’s files on the floor, and
arguing with the judge), despite warnings from the judge that
such behavior would result in the defendant’s removal from the
courtroom, had “lost his Sixth and Fourteenth Amendment

                                21
rights to be present throughout his trial.” 397 U.S. at 339–40,
346. In Taylor, the Court determined that a defendant who had
mysteriously, though voluntarily, disappeared from his trial had
“effectively waived” his right to be present even absent a
warning from the trial judge that the trial would proceed in his
absence. 414 U.S. at 17, 20. The Court emphasized that
“[p]etitioner had no right to interrupt the trial by his voluntary
absence.” Id. at 20. The legal principle to be drawn from these
precedents is that forfeiture of a constitutional right will not be
found absent defiant behavior on the part of a criminal
defendant that may disrupt the trial.
        As stated by the majority opinion, our Court has relied on
the above precedents as touchstones in upholding, on habeas
review, a state court decision that a criminal defendant had
forfeited his Sixth Amendment right to counsel, as has the Court
of Appeals for the Second Circuit. See Fischetti, 384 F.3d at
150, 153 (holding that the state court’s conclusion that
defendant had forfeited his right to counsel was neither contrary
to nor an unreasonable application of clearly established federal
law); Gilchrist v. O’Keefe, 260 F.3d 87, 97, 100 (2d Cir. 2001)
(same). We determined in Fischetti (in an opinion that I joined)
that Allen and Taylor, taken together, “certainly provide a basis
to conclude . . . that defiant behavior by a defendant can
properly cost the defendant some of his Sixth Amendment
protections if necessary to permit trial to go forward in an
orderly fashion.” Fischetti, 384 F.3d at 150 (emphases added);
see also Gilchrist, 260 F.3d at 97 (concluding that Allen and
Taylor “stand for the proposition that, even absent a warning, a
defendant may be found to have forfeited certain trial-type
constitutional rights based on certain types of misconduct”
(emphasis added)). Thus, both the Fischetti and Gilchrist

                                22
decisions recognized that the Supreme Court’s forfeiture
precedents involved a common factor—misconduct on the part
of the defendant. Neither Court, however, gave any indication
that it would uphold a finding of forfeiture, even on our limited
§ 2254 habeas review, when there was no “defiant behavior” on
the defendant’s part.
        In Fischetti, which my colleagues in the majority believe
controls our decision in this case, the defendant, who was
represented by his third court-appointed counsel, decided on the
eve of trial that he was unwilling to proceed with that counsel
but was also unwilling to represent himself. 384 F.3d at 145.
After determining that the defendant’s complaints about his
counsel were “unfounded,” the trial judge refused to appoint
new counsel, and the defendant was forced to go to trial without
an attorney even though he had not been advised of the
consequences of self-representation. Id. at 145–46. Our opinion
in Fischetti noted that this behavior “was part of a pattern of
uncooperative conduct through which Fischetti repeatedly
complained about counsel and sought to delay or derail his
second trial.” Id. at 145. In the context of our determination
that the state court’s decision that the defendant had forfeited his
right to counsel was not contrary to nor an unreasonable
application of clearly established federal law, we emphasized
the defendant’s “obduracy” and the fact that “[t]his was not a
circumstance in which Fischetti was simply forced to go to trial
without counsel or where he received an inadequate waiver
hearing . . . .” Id. at 150–151 (emphasis added). Moreover, in
Gilchrist, the Second Circuit explicitly stated that “the lack of
Supreme Court precedent specifically addressing forfeiture of
the right to counsel does not mean that any determination that
such a fundamental right has been forfeited, even if based on an

                                23
utterly trivial ground, would survive habeas review.” 260 F.3d
at 97.
        The view that a criminal defendant must have engaged in
some relatively serious misconduct, or have acted to delay or
otherwise disrupt his or her trial, in order to be found to have
forfeited his or her right to counsel is supported by the holdings
of our Court and our sister Circuits in direct review cases raising
this issue.5 In United States v. Goldberg, 67 F.3d 1092 (3d Cir.
1995), we surveyed Supreme Court and federal appellate
precedent regarding forfeiture, particularly forfeiture of the right
to counsel, and found that “because of the drastic nature of the
sanction, forfeiture would appear to require extremely dilatory
conduct.” Id. at 1101. We later applied this standard in United
States v. Leggett, 162 F.3d 237 (3d Cir. 1998), and held that a
defendant’s unprovoked physical attack on his attorney
“qualifie[d] as the sort of ‘extremely serious misconduct’ that
amounts to the forfeiture of counsel.” Id. at 250 (quoting
Goldberg, 67 F.3d at 1102)). Accord United States v. Thomas,
357 F.3d 357, 363 (3d Cir. 2004) (holding that defendant
forfeited right to counsel when he threatened and orally abused
counsel, forced the filing of meritless claims, and refused to
cooperate with counsel in “relationships with four attorneys.”).


   5
    “In determining whether a state decision is an unreasonable
application of Supreme Court precedent, this [C]ourt has taken
the view that decisions of federal courts below the level of the
United States Supreme Court may be helpful to us in
ascertaining the reasonableness of states’ application of clearly
established Supreme Court precedent.” Fischetti, 384 F.3d at
149.

                                24
Other federal courts have held that defendants forfeited their
right to counsel when an attorney’s allegation that the defendant
threatened to kill him was undisputed, United States v.
Thompson, 335 F.3d 782, 785 (8th Cir.2003), when the
defendant’s behavior was “repeatedly abusive, threatening, and
coercive,” United States v. McLeod, 53 F.3d 322, 326 (11th Cir.
1995), when the defendant “stubborn[ly] refus[ed]” to pay to
retain counsel even when he could afford to do so, United States
v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992), and when
defendants failed to retain counsel within a reasonable time
where their insistence on counsel of their choice was “used as a
device to manipulate or subvert the orderly procedure of the
court.” United States v. Mitchell, 777 F.2d 248, 257–58 (5th
Cir. 1985) (holding that district court did not abuse its discretion
in forcing defendants to proceed to trial unrepresented when
they “requested [a] continuance in bad faith and for the purpose
of delay” and when one defendant attempted “to manipulate the
court’s schedule by retaining an attorney he knew to have a
conflict.”).
        I recognize that in Fischetti we characterized the above
precedents (specifically Leggett, McLeod, Bauer, and Mitchell)
as not providing “any clear guidance as to the precise standard
to be applied before forfeiture can be triggered.” 384 F.3d at
152. Upon further review, I continue to agree that these cases
do not create a bright-line rule as to when the federal courts will
find that a criminal defendant has forfeited a constitutional right,
particularly the right to counsel. However, these cases do
contain common factors from which the principle can be
gleaned that the federal appellate courts will not find a forfeiture
absent a defendant’s defiant behavior—whether it took the form
of physical abuse or of attempts to delay and manipulate the

                                25
judicial system. See, e.g., Goldberg, 67 F.3d at 1094–96, 1102
(declining to hold that defendant, who had asked for a
continuance to obtain new counsel and appeared to be
attempting to manipulate his right to counsel to delay his trial,
forfeited that right because he had not engaged in the type of
“extremely serious misconduct” that would warrant a forfeiture
finding); United States v. Meeks, 987 F.2d 575, 579 (9th Cir.
1993) (holding that district court erred by presuming a waiver of
the right to counsel and forcing a defendant, who had attempted
to change counsel several times, to represent himself at trial
because the trial court, not the defendant, was in control of
whether the defendant continued to be represented by counsel).
        Here, Wilkerson simply did not act in a way that our
Supreme Court has held leads to a finding of forfeiture of
constitutional rights generally or that the lower federal courts
have subsequently held leads to a finding of forfeiture of the
right to counsel specifically. The facts of this case are aptly
summarized in the majority opinion. They demonstrate that the
only conduct on Wilkerson’s part that could conceivably be
characterized as “defiant behavior” or “misconduct” was his
failure to secure counsel by his trial date as he was instructed to
do by the trial judge. There is, however, no evidence in the
record (other than pure speculation by the trial judge) that
Wilkerson failed to obtain an attorney by that date in a deliberate
effort to delay the trial or manipulate proceedings in any way.
To the contrary, Wilkerson represented to the trial judge that his
family was in the process of obtaining counsel for him and that
this had been delayed because it was difficult for him to make
phone calls from prison. The record shows that Wilkerson was
attempting to comply with the judge’s order, not seeking to defy
it.

                                26
       In light of these facts, I conclude that the Pennsylvania
court unreasonably extended clearly established Supreme Court
precedent on the forfeiture of constitutional rights to a context
in which it should not apply—i.e., a situation in which there is
no evidence of any misconduct on Wilkerson’s part. Although
the Court has not spoken directly on forfeiture of the right to
counsel, the above survey of federal appellate case law reveals
that the lower federal courts have interpreted the Supreme
Court’s more general forfeiture precedent as being applicable
only to situations where the defendant has actively engaged in
certain types of misconduct. The Supreme Court cases
themselves—Allen and Taylor—involved defendants who had
engaged in serious misconduct. Hence the extension of that
precedent to this case was unreasonable.

        B.      Application of Waiver Precedent
        I recognize that, in habeas review, we must look at the
state decision under review with some specificity and compare
it to Supreme Court precedent related to the particular factual
setting of the case at issue. My colleagues in the majority hold
that the existence of Supreme Court precedent regarding
forfeiture of constitutional rights precludes the application of
more general Supreme Court precedent regarding the
fundamental right to counsel and waivers of that right.
However, a corollary of my conclusion that the Pennsylvania
court unreasonably extended current forfeiture precedent to
Wilkerson’s case is that those precedents were not the proper
touchstone for the Commonwealth court to consider when
determining whether Wilkerson’s forced self-representation at
trial constituted a violation of his constitutional rights. Rather,
I believe that the Commonwealth court should have applied

                                27
Supreme Court precedent regarding waivers of the right to
counsel.
        The Supreme Court has held that the right to counsel is
fundamental, Gideon v. Wainwright, 372 U.S. 335, 343 (1963),
and has long recognized that “courts indulge every reasonable
presumption against waiver of constitutional rights and . . . do
not presume acquiescence in the loss of fundamental rights.”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation
omitted). Supreme Court precedent therefore requires that
“[a]lthough a defendant need not himself have the skill and
experience of a lawyer in order to competently and intelligently
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 will be made with eyes open.” Faretta v. California, 422
U.S. 806, 835 (1975) (internal quotation omitted); see also Iowa
v. Tovar, 541 U.S. 77, 81 (2004) (“Waiver of the right to
counsel, as of constitutional rights in the criminal process
generally, must be a ‘knowing, intelligent ac[t] done with
sufficient awareness of the relevant circumstances.” (quoting
Brady v. United States, 397 U.S. 742, 748 (1970))).
        Wilkerson did not knowingly or voluntarily waive his
right to counsel in this case. He vehemently protested against
representing himself both before the trial judge forced him to go
to trial pro se with only standby counsel for assistance and
during the trial itself. See, e.g., App. at 65–66 (“I want to make
this a matter of record right now, that I don’t agree to this, okay?
This representing myself. I don’t agree to this. I’m ignorant to
the fact. I’m not a lawyer. I don’t know what’s going on, and
this is not right.”); App. at 139 (“You know I don’t know what
I’m doing. I’m forced to do this. I’m naive of the whole

                                28
process.”).
        Moreover, even assuming that some sort of waiver took
place, the trial judge also did not adequately warn Wilkerson of
the consequences of waiving the right to counsel. Although he
told Wilkerson that it was important for him to obtain a lawyer
quickly so that the lawyer could prepare for trial, he did not
inform Wilkerson of the dangers of self-representation. Thus,
the judge’s decision to force Wilkerson to represent himself at
trial in the face of his repeated protests, and without ensuring
that Wilkerson understood the consequences of any waiver,
violated his constitutional right to counsel.
        In upholding the trial judge’s decision, the Pennsylvania
court, far from indulging every reasonable presumption against
waiver, leapt to the conclusion that Wilkerson had forfeited his
right to counsel. That decision was not only an unreasonable
extension of forfeiture precedent but was also contrary to, and
an unreasonable application of, Supreme Court precedent on
waiver of the right to counsel. Although that precedent may be
characterized as more general than the Court’s forfeiture
holdings, it is nevertheless applicable here as it is the precedent
that most closely deals with the factual situation with which we
are presented.
                             *****
        To summarize, I would grant Wilkerson’s habeas petition
because I believe that this case does not have the element of
defiant behavior or misconduct that is necessary to find
forfeiture of a constitutional right and thus the Pennsylvania
court unreasonably extended forfeiture principles to a new
context where they should not apply. The right to counsel is one
of the cornerstones of our criminal justice system and, even on
habeas review, we should not lightly uphold state court

                                29
decisions that find that this fundamental right has been forfeited
without a searching inquiry into whether general forfeiture
precedent has been reasonably extended to the particular case at
issue. See Gilchrist, 260 F.3d at 97. In stark contrast to
Fischetti, this is a case where Wilkerson was simply forced to go
to trial without counsel. Cf. Fischetti, 384 F.3d at 150–51. The
Court’s forfeiture precedent was unreasonably applied in lieu of
its waiver precedent, and I believe that Wilkerson would also be
entitled to habeas relief even if that precedent had been applied.
Thus I respectfully dissent.




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