In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3072

Keith S. Betts,

Petitioner-Appellant,

v.

Jon E. Litscher,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-147--Aaron E. Goodstein, Magistrate Judge.


Submitted February 5, 2001--Decided February 22, 2001



  Before Easterbrook, Manion, and Diane P. Wood, Circuit
Judges.

  Easterbrook, Circuit Judge. After his conviction
in state court for armed robbery, Keith Betts
told the court that he wanted to appeal.
Elizabeth Stephens, the assistant public defender
assigned to represent him under Wis. Stat.
sec.809.30, eventually decided that pursuing the
appeal would be frivolous. But instead of seeking
leave to withdraw while informing the court of
potential issues and the analysis supporting
counsel’s conclusion that they are not
meritorious, see McCoy v. Wisconsin Court of
Appeals, 486 U.S. 429 (1988), First Assistant
Public Defender Mary E. Waitrovich wrote to the
court that Betts had "declined an opportunity to
have a no-merit report filed by Attorney Stephens
and elected to proceed pro se with an appeal."
That is the last anyone heard from counsel.

  Waitrovich may have thought that Betts had
"elected to proceed pro se", but he had a
different understanding. Betts peppered the court
with requests for a lawyer to assist him. Every
request was denied. The initial order, issued by
the Wisconsin Court of Appeals on August 14,
1989, shortly after Waitrovich’s letter, stated
that the public defender’s office had "properly
exercised its discretion in declining
representation" and that as a result "new counsel
will not be appointed for Betts." He persisted,
only to be met by judicial declarations that he
had forfeited his right to counsel (or his right
to contest his lawyers’ performance) by not
taking one or another step required by state law,
such as initiating a postconviction proceeding in
the trial court under Wis. Stat. sec.974.02.
Betts soldiered on but isn’t much of a lawyer;
his conviction and 20-year sentence were
affirmed. Next Betts tried collateral relief,
failing in that quest as well. The court ruled
that all of his requests, including the demand
for counsel on direct appeal, had been forfeited.
See Wisconsin v. Betts, 1995 Wis. App. Lexis 1351
(1st Dist. Oct. 31, 1995). In federal court a
magistrate judge, presiding by consent, denied
Betts’ petition for a writ of habeas corpus.

  Betts was constitutionally entitled to the
assistance of counsel on direct appeal, but the
state of Wisconsin gave him the runaround. It
allowed counsel to withdraw unilaterally, then
used the ensuing procedural shortcomings to block
all avenues of relief. Yet one principal reason
why defendants are entitled to counsel on direct
appeal is so that they will not make the kind of
procedural errors that unrepresented defendants
tend to commit. The Constitution does not permit
a state to ensnare an unrepresented defendant in
his own errors and thus foreclose access to
counsel. This is one of those rare cases where a
state procedural ground not only is inadequate--
for it is circular and supposes that Betts
properly lacked counsel when the missteps were
made--but also contravenes rules articulated by
the Supreme Court, and thus supports a writ of
habeas corpus under 28 U.S.C. sec.2254(d)(1)
because the state decision is "contrary to . . .
clearly established Federal law, as determined by
the Supreme Court of the United States". See also
Williams v. Taylor, 529 U.S. 362 (2000).

  Wisconsin does not deny that Betts was
constitutionally entitled to the assistance of
counsel on direct appeal, unless he waived that
entitlement. There is scant evidence of waiver.
Betts vociferously asserted that he wanted
counsel. The only support for waiver is
Waitrovich’s statement. But Betts contested this,
and the state court did not hold a hearing or use
any other procedure to ascertain the truth.
Indeed, the letter is inadequate on its own
terms, for it does not reveal that Stephens or
Waitrovich informed Betts about the judicial
role. If they told Betts that his only options
were either self-representation or a conclusive
no-merit brief (= no representation), they gave
him bad advice, for the court must review and may
reject a no-merit report and either direct
counsel to continue or appoint new counsel.
Unfortunately, the record does not reveal what
information, if any, the public defender’s office
provided before Betts made this election between
evils (if indeed he made any choice).
Understanding one’s options is an essential
ingredient of waiver when the right at stake is
counsel. See Johnson v. Zerbst, 304 U.S. 458
(1938). Waiver therefore has not been
established. See Swenson v. Bosler, 386 U.S. 258
(1967). This case is some distance from Oimen v.
McCaughtry, 130 F.3d 809 (7th Cir. 1997), in
which the defendant discharged his lawyer after
a brief had been filed on appeal and must have
known that he had a right to an appellate
decision on the existing brief. Betts did not
have a chance to discharge Stephens; she quit on
him.

  Nonetheless, the state observes that counsel
need not pursue a frivolous appeal but may
withdraw rather than violate standards of ethical
conduct. See Anders v. California, 386 U.S. 738
(1967); Smith v. Robbins, 528 U.S. 259 (2000);
McCoy v. Wisconsin Court of Appeals. True enough.
Still, Anders, Smith, and McCoy all hold that
counsel may not be the final judge of
frivolousness. See Smith, 528 U.S. at 280
(discussing earlier holdings to the same effect).
Counsel must set before the court the issues that
may be raised on appeal and explain why none is
meritorious. Many ways to carry out that task are
conceivable; Anders, Smith, and McCoy conclude
that each of three different approaches is
adequate. But what they have in common--what
Betts’ case lacks--is judicial decision on
frivolousness. Unless the court is satisfied that
an appeal would be frivolous, counsel must be
instructed to continue representing the appellant
(or a new lawyer must be appointed). Attorney
Stephens did not file a no-merit report, using
the Wisconsin procedure that McCoy deemed
constitutionally adequate. Instead she had her
supervisor tell the court that in Stephens’s view
the appeal lacked merit, and that Betts had
elected to proceed pro se rather than have his
lawyer lay out the details. Under Anders, Smith,
and McCoy, this is a cold flunk. The court played
no role in evaluating the merits of the appeal.
The process could be saved only if Betts actually
waived his right to the assistance of counsel.
Because this record does not demonstrate waiver,
it follows that Wisconsin deprived Betts of his
constitutional right to the assistance of counsel
on direct appeal.

  Attempting to defend the judgment in its favor,
Wisconsin suggests that any error was harmless
because Stephens was right--Betts really had no
non-frivolous issue for direct appeal. This
argument, too, is "contrary to . . . clearly
established Federal law, as determined by the
Supreme Court of the United States". Penson v.
Ohio, 488 U.S. 75, 85-89 (1988), holds that when
a state court allows appellate counsel to
withdraw without an independent judicial
determination of the appeal’s merit, the
defendant is entitled to a fresh appeal without
demonstrating that the initial appeal was non-
frivolous. Jumping ship, as Stephens did, is a
form of abandonment, and a defendant abandoned by
his lawyer has suffered injury from that very
fact--from the loss of advocacy services that
could have been used to establish a non-frivolous
issue for appeal. See also, e.g., Roe v. Flores-
Ortega, 528 U.S. 470, 483 (2000); Castellanos v.
United States, 26 F.3d 717 (7th Cir. 1994).

  Betts must be restored to the position he would
have occupied had the state judiciary properly
implemented McCoy and related cases. The judgment
of the district court is vacated, and the case is
remanded with instructions to issue a writ of
habeas corpus requiring Betts’ release unless,
within 60 days, Wisconsin affords him a new
appellate proceeding, as if on direct appeal,
with the assistance of appointed counsel. The new
proceeding must include an opportunity to cure
(by filing motions under Wis. Stat. sec.974.02)
whatever procedural gaffes Betts committed when
he lacked legal assistance. It may be that his
new counsel will agree with Stephens that there
are no non-frivolous issues, and in that event
counsel may move to withdraw under the McCoy
procedure. All we decide is that Betts’ current
custody is unlawful because he did not have the
assistance of an advocate on direct appeal.
