                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-4324
EDDIE L. BROOKS,
                                             Petitioner-Appellant,
                                v.


GARY R. MCCAUGHTRY, Warden,
                                             Respondent-Appellee.

                         ____________
            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
            No. 00-C-1481—William C. Griesbach, Judge.
                         ____________
       ARGUED APRIL 5, 2004—DECIDED AUGUST 12, 2004
                         ____________



  Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
  POSNER, Circuit Judge. Eddie Brooks was convicted in a
Wisconsin state court of first-degree murder of a policeman,
and related crimes, and was sentenced to life in prison plus
109 years. After exhausting his state remedies in State v. Brooks,
607 N.W.2d 290 (Wis. 1999), he sought federal habeas corpus,
lost in the district court, and appeals, contending that the
Wisconsin trial court deprived him of his federal constitu-
tional right to represent himself. Faretta v. California, 422 U.S.
806 (1975). (His other contentions do not merit discussion.)
2                                                No. 02-4324

To prevail, he must show that the state decision of which he
complains “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
   Before his trial began, Brooks was permitted to fire two
lawyers who had been appointed in succession to represent
him. A third was appointed. The judge warned Brooks that
if he fired number three, he would have to represent him-
self. When the case was called for trial, Brooks moved to
dismiss the lawyer (whose motion to withdraw at Brooks’s
request had been denied) and when the judge denied the
motion Brooks punched the lawyer in the face. Two days
later, after jury selection, Brooks moved that he be allowed
to represent himself. After quizzing him about his educa-
tional background and his knowledge of the law, the judge
denied the motion.
   The judge conceivably could have ruled that Brooks’s mo-
tion to represent himself was untimely. Hamiel v. State, 285
N.W.2d 639, 648-49 (Wis. 1979); United States v. Kosmel, 272
F.3d 501, 505-06 (7th Cir. 2001); Cain v. Peters, 972 F.2d 748
(7th Cir. 1992). “A person accused of a crime has an absolute
right, under the Sixth Amendment, to represent himself
only if he asserts that right before trial.” United States v.
Washington, 353 F.3d 42, 46 (D.C. Cir. 2004). Here, the trial
had begun, Brooks had already run through three law-
yers—suggesting that he might have intended from the get-
go to represent himself—and the evidence against him was
overwhelming, suggesting that he might be seeking by his
latest change of heart merely to disrupt the trial. Yet having
told Brooks that if he fired lawyer number three he would
have to represent himself, the judge might well have been
understood to be giving Brooks until then to decide to
represent himself, consistent with cases such as United States
No. 02-4324                                                   3

v. Oreye, 263 F.3d 669, 670-71 (7th Cir. 2001), and United
States v. Irorere, 228 F.3d 816, 826-28 (7th Cir. 2000). Those
cases hold that a defendant who is warned that if he fires his
lawyer he’ll have to represent himself will, if he does fire the
lawyer, be deemed by doing so to have chosen to represent
himself. However all this may be, the judge based his denial
of Brooks’s motion not on timeliness but on competency,
and Brooks argues that the ruling deprived him of the right
recognized in the Faretta case.
  He contends that anyone competent to stand trial, as he
was, is ipso facto competent to waive counsel. Whether this
contention is sound depends on the exact meaning of “com-
petent.” It is one thing for a defendant to have sufficient
mentation to be able to follow the trial proceedings with the
aid of a lawyer, and another to be able to represent himself;
and while Brooks clearly had the former, he seems equally
clearly to have lacked the latter, if we may judge from his wild
behavior and incomprehensible outbursts during the trial.
And if he was incompetent to conduct his own defense, this
is evidence that his decision to waive counsel was not
“knowing and intelligent,” as all waivers must be in order
to be legally effective. E.g., Iowa v. Tovar, 124 S. Ct. 1379,
1387 (2004), Faretta v. California, supra, 422 U.S. at 835;
Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938); United States v.
Irorere, supra, 228 F.3d at 828. A waiver of counsel would
make no sense from the defendant’s standpoint if he knew
he was incompetent to defend himself (unless his intent was
to disrupt the trial—in which event it would not be an
exercise of the right recognized by Faretta); and so senseless
a waiver could only with difficulty be regarded as knowing
and intelligent. That appears to be this case.
  But Brooks argues that in Godinez v. Moran, 509 U.S. 389
(1993), the Supreme Court held that the standard for com-
petence to stand trial and the standard for competence to
4                                                  No. 02-4324

waive counsel are identical, and if his interpretation (which
some courts have accepted, e.g., People v. Welch, 976 P.2d
754, 774 (Cal. 1999); State v. Day, 661 A.2d 539, 548 (Conn.
1995); State v. Camacho, 561 N.W.2d 160, 172 (Minn. 1997)) is
correct, it might seem to follow that we must order a new
trial for Brooks. But we doubt both the premise and the
conclusion. The Supreme Court in Godinez did reject the
idea “that the decision to waive counsel requires an appre-
ciably higher level of mental functioning than the decision
to waive other constitutional rights . . . . [A] criminal defen-
dant’s ability to represent himself has no bearing upon his
competence to choose self-representation.” 509 U.S. at 399-400
(emphasis in original; footnote omitted). But there is a differ-
ence between mental functioning, which is the ability
to process information, and the information itself; more
information may be required for an effective waiver of the
right to counsel than for being able to follow the goings-on
at one’s trial. And so the Court went on to say that the judge
must satisfy himself that the defendant not only has the re-
quisite mental competence to choose whether to represent
himself but also knows enough about the consequences of
his choice to make it “intelligent and voluntary.” Id. at 401-02.
As we have explained, an effective “waiver of the right to the
assistance of counsel at trial, the stage of a criminal prosecu-
tion most difficult for a layperson to navigate, may require an
oral inquiry to ensure that the defendant chooses with knowl-
edge of his entitlements and his eyes open to the dangers of
self-representation.” Speights v. Frank, 361 F.3d 962, 964 (7th
Cir. 2004) (emphasis in original).
  The Court further said in Godinez that “states are free to
adopt competency standards that are more elaborate than”
the standard laid down for competence to stand trial in
Dusky v. United States, 362 U.S. 402 (1960) (per curiam), but
“the Due Process Clause does not impose these additional
requirements.” 509 U.S. at 402. The Dusky (due process)
No. 02-4324                                                  5

standard of competence to stand trial requires that the de-
fendant have “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding”
and “a rational as well as factual understanding of the pro-
ceedings against him.” 362 U.S. at 402. Note the assumption
that the defendant has a lawyer—that he is not trying to
represent himself. Self-representation was not the issue in
Dusky.
   Even more important is the distinction between what due
process requires and what it permits. In the decision the
Supreme Court reversed in Godinez, the Ninth Circuit had
imposed a federal minimum standard of competence for self-
representation in state prosecutions that was higher than the
Dusky standard, and it was this that the Court was disap-
proving. The reason for disapproving it, we conjecture, was
that it might enforce against the states a concept of ineffec-
tive self-representation. Suppose the Ninth Circuit’s ap-
proach (which required that the defendant be capable of a
“reasoned choice” to represent himself) required a de-
fendant to be sufficiently skilled and knowledgeable to be
able to do a really creditable job of self-representation. Then
if a state judge allowed a defendant to represent himself and
the defendant screwed up, the state would have to give him
a second bite at the apple—a second trial, this time with
assistance of counsel whether he wanted it or not. Cain v.
Peters, supra, 972 F.2d at 750; Alan R. Felthous, “The Right
to Represent Oneself Incompetently: Competency to Waive
Counsel and Conduct One’s Own Defense Before and After
Godinez,” 18 Mental & Physical Disability L. Rep. 105, 109
(1994). No federal policy, whether found in the due process
clause of the Fourteenth Amendment or anywhere else, is
offended by a state’s adopting a rule that may allow some
of its criminal defendants to whipsaw it.
  And even if the standards for competence to stand trial and
for competence to waive the right of counsel are the same,
6                                                No. 02-4324

the existence of an effective waiver need not be automati-
cally deduced from a finding that the defendant is competent
to stand trial. This would be obvious if having determined
that the defendant was competent to stand trial the judge
had asked the defendant whether he wanted a lawyer but had
not explained the consequences of going to trial without one.
A judge who, having explained the consequences, finds that
the defendant doesn’t understand them is entitled to
conclude that although competent to stand trial, the defen-
dant has not made an effective waiver of his right to counsel
and therefore may not represent himself. This result is
consistent with Godinez.
  Wisconsin, as this case illustrates, has set a higher stand-
ard for waivers of the Faretta right than for competence to
stand trial. See also Commonwealth v. Simpson, 704 N.E.2d
1131, 1135 n. 5 (Mass. 1999). The Supreme Court of Wisconsin
held in State v. Klessig, 564 N.W.2d 716, 722-24 (Wis. 1997),
that the state’s approach, adopted in Pickens v. State, 292
N.W.2d 601, 609-11 (Wis. 1980), had survived Godinez, albeit
with a modification irrelevant to this case. Because being
competent to stand trial and having waived the right to
counsel do not require the same information, and because
the former competence does not imply an effective waiver
in all cases, we do not think that Wisconsin’s approach vio-
lates the rule of Godinez.
  We may be wrong, but if so Brooks still must lose. Re-
member that a state court’s decision can be struck down in
a federal habeas corpus proceeding only if it is contrary to
“clearly established” federal law as declared by the Supreme
Court. Godinez did not clearly establish a rule, which is the
rule for which Brooks contends, that a defendant found
competent to stand trial is automatically entitled to repre-
sent himself no matter how deficient his understanding of
the consequences of going to trial without a lawyer.
                                                  AFFIRMED.
No. 02-4324                                             7

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—8-12-04
