                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0006n.06

                                             No. 07-6310                                    FILED
                                                                                         Jan 05, 2010
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


ANTHONY D. FORSTER,                                )
                                                   )
       Petitioner-Appellant,                       )
                                                   )    ON APPEAL FROM THE UNITED
v.                                                 )    STATES DISTRICT COURT FOR THE
                                                   )    MIDDLE DISTRICT OF TENNESSEE
HENRY STEWARD, Warden,                             )
                                                   )
       Respondent-Appellee.                        )
                                                   )


       Before: RYAN, COOK, and WHITE, Circuit Judges.


       COOK, Circuit Judge. Anthony Forster appeals the district court’s denial of his petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that the Tennessee Court of

Criminal Appeals deprived him of his Fourteenth Amendment right to appellate counsel. Because

the state appellate court unreasonably applied clearly established Supreme Court precedent

governing waiver, we reverse the district court’s judgment and remand with instructions to grant a

conditional writ of habeas corpus, requiring the state of Tennessee to reinstate Forster’s direct appeal

or release him.


                                                   I.


       A Davidson County grand jury indicted Forster on charges stemming from two armed

robberies—one of the West Meade Cleaners, the other of an Arby’s restaurant. During the course
No. 07-6310
Forster v. Steward

of the trial proceedings, a series of Forster’s state-appointed attorneys withdrew. The withdrawal

of Forster’s fourth attorney prompted his family to privately retain John Oliva, who represented

Forster throughout the trial.


        The jury returned a split verdict, acquitting Forster of the charges related to the robbery of

West Meade Cleaners, but convicting him of the Arby’s robbery. Following the trial, Oliva moved

to withdraw. The court granted Oliva’s motion and appointed Nicholas Hare to represent Forster

at sentencing. Shortly thereafter, Forster moved to relieve Hare and to proceed pro se at sentencing.

The court granted Forster’s request to relieve Hare, but asked him to serve as “elbow counsel.” Prior

to permitting Forster to proceed pro se, the judge questioned Forster to ensure the validity of his

waiver of his Sixth Amendment right to counsel.


        Forster represented himself at the sentencing hearing where the court adopted the state’s

recommendation to sentence him to twenty-two years’ imprisonment without the possibility of

parole. Forster then filed a motion in the Tennessee Court of Criminal Appeals requesting

appointment of counsel for his appeal. In a written order, the appellate court denied his request,

finding from a review of the pre-sentencing colloquy that “[Forster] voluntarily, knowingly, and

intelligently relinquished his right to counsel” and “may not now change his mind.” The court

highlighted “[t]he trial court[’s] . . . gener[osity] in dealing with [Forster’s] whimsical behavior” and

expressed its unwillingness to “engage in a similar battle with him.”


       Following the affirmance of Forster’s conviction and sentence on direct appeal, he


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unsuccessfully sought state postconviction relief. Having exhausted his Tennessee remedies, Forster

petitioned for federal habeas relief, raising fourteen claims. The district court reviewed and denied

each one, but granted a certificate of appealability on whether the Tennessee Court of Criminal

Appeals unreasonably applied clearly established Supreme Court law when it denied Forster’s explicit

request for appellate counsel.


                                                  II.


       We review de novo the district court’s decision denying habeas relief. Ege v. Yukins, 485 F.3d

364, 371 (6th Cir. 2007). We also give fresh review to factual findings that arose from the state-court

record. Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), we may grant a writ of habeas corpus if the state-court

adjudication “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.” 28 U.S.C.

§ 2254(d)(1). The “unreasonable application” clause permits habeas relief where the state court

identifies the correct governing legal principle from the Supreme Court’s decisions, but unreasonably

applies that principle to the facts. Williams v. Taylor, 529 U.S. 362, 407 (2000).


                                                 III.


       The Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first

appeal as of right. Douglas v. California, 372 U.S. 353, 357–58 (1963). In denying Forster’s request

for appointment of appellate counsel, the Tennessee Court of Criminal Appeals relied on his post-

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 Forster v. Steward

verdict, pre-sentencing colloquy as evidence of his waiver of this right. Forster correctly argues that

the state court unreasonably applied clearly established federal law when it inferred a waiver of his

Fourteenth Amendment right to appellate counsel from his waiver of his Sixth Amendment right to

trial counsel.


        Waivers of appellate counsel must be knowing, intelligent, and voluntary. Swenson v. Bosler,

386 U.S. 258, 260 (1967) (per curiam). A waiver qualifies as knowing and intelligent where the

defendant possesses “a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).

Voluntariness requires the defendant’s decision to be “the product of a free and deliberate choice

rather than intimidation, coercion, or deception.” Id. Thus, to effectuate a valid waiver of the right

to appellate counsel, a court must inform the defendant of the right he is surrendering, alert him to

“the dangers and disadvantages of self-representation,” Faretta v. California, 422 U.S. 806, 835

(1975), and ensure that he foregoes counsel “with eyes open.” Adams v. United States ex rel.

McCann, 317 U.S. 269, 279 (1942).


        The Tennessee Court of Criminal Appeals seems to have “gleaned” Forster’s waiver of the

right to the assistance of appellate counsel from his pre-sentencing colloquy with the trial court judge,

his frustrating manipulation of trial-counsel appointments, and his decision to go it alone at

sentencing, albeit with “elbow counsel.” Tellingly, Tennessee never argues that the trial judge’s




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exchange with Forster concerned his right to appellate counsel. Instead, its brief refers generically

to wavier of “the right to counsel,” without distinguishing trial-counsel waiver from appellate-counsel

waiver.


          Absent any evidence supporting Forster’s intentional relinquishment of his Fourteenth

Amendment right to appellate counsel, the Tennessee Court of Criminal Appeals unreasonably

applied clearly established Supreme Court law when it concluded Forster knowingly, intelligently,

and voluntarily waived his right to appointed appellate counsel. And we presume prejudice from the

denial of appellate counsel. Penson v. Ohio, 488 U.S. 75, 88 (1988).


                                                  IV.


          For these reasons, we reverse the district court’s judgment and remand with instructions to

grant a conditional writ of habeas corpus, directing Tennessee to release Forster from custody unless,

within 120 days of the order, the state affords him an opportunity to appeal his conviction with the

assistance of counsel.




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