217 F.3d 939 (7th Cir. 2000)
ROBERT ST. PIERRE,    Petitioner-Appellant,v.ROGER D. COWAN, Warden,  Menard Correctional Center, Respondent-Appellee.
No. 98-3451
In the  United States Court of Appeals  For the Seventh Circuit
Argued March 22, 1999Decided June 28, 2000

Appeal from the United States District Court   for the Northern District of Illinois, Eastern  Division.  No. 95 C 5040--Charles P. Kocoras, Judge.
Before Bauer, Flaum, and Diane P. Wood,  Circuit Judges.
Diane P. Wood, Circuit Judge.


1
Robert St.  Pierre, who has twice been convicted of a  double murder and twice sentenced to  death, cannot decide what he wants to do  about that situation. Indeed, from the  time he was first arrested for the crimes  up to and including his appeals in this  court in his federal habeas corpus  proceeding, he has flipped and flopped,  waived and withdrawn waivers, to the  point where it is practically impossible  to know what his preferences are for the  handling of his case. The narrow question  before us in this appeal is whether the  district court correctly decided that St.  Pierre had procedurally defaulted five  out of the seven claims he was raising in  his petition under 28 U.S.C. sec. 2254.  Applying the legal standards that  obtained before the passage of the  Antiterrorism and Effective Death Penalty  Act of 1996 (AEDPA), Pub. L. 104-132, 110  Stat. 1214, we conclude that St. Pierre  did not lose the right to an adjudication  of his claims on the merits. We therefore  remand the case to the district court for  further appropriate proceedings.


2
* A.  Proceedings on Conviction and  Sentencing


3
The Illinois Supreme Court gave a  detailed description of the crimes for  which St. Pierre was convicted in the  first opinion it rendered in his case,  People v. St. Pierre, 522 N.E.2d 61 (Ill.  1988) ("St. Pierre I"). A summary will  suffice for our needs. On July 27, 1982,  at the request of Jackie Gibons and her  boyfriend Barry Wilson, St. Pierre  brutally murdered both of Gibons's  parents in their Skokie, Illinois, home  by bludgeoning each of them in turn with  a hammer. The next day, the three bundled  up the bodies in the trunk of the  Gibonses' car and Wilson drove off with  them, eventually dumping them somewhere  near Albuquerque, New Mexico.


4
The police soon realized that foul play  was afoot when Mrs. Gibons' sister  contacted them on August 2 to let them  know that Mrs. Gibons had not been seen  at work for a few days. A detective went  to the house and found the carnage the  threesome had left behind. They also  found a belt bearing St. Pierre's name  and a number, which turned out to be his  prison identification number. (St. Pierre  had been released from prison only about  three weeks before the murders, upon  completion of a sentence for theft.)  Jackie Gibons contacted the police the  next day, August 3, and gave them a full  statement. The police promptly picked up  St. Pierre on the same day and brought  him to the Skokie police station.


5
It was there, at that very first  encounter, that St. Pierre first  manifested his chronic inability to come  to a decision and stick with it. At the  time of his arrest, the police officers  read him his Miranda rights. Once at the  stationhouse, an assistant state's  attorney began his questioning with a  second reminder of his right to remain  silent. The exchange, which is set forth  in full in St. Pierre I, shows St. Pierre  informing the state's attorney at least  twice that he did want a lawyer, and two  or three sentences later just as clearly  telling the lawyer that he wanted to make  a statement right then, and then again  that he wanted to have his lawyer  present. See 522 N.E.2d at 66-67. St.  Pierre then went on to give a statement  admitting to his role in the two deaths.


6
At the trial that followed, the court  denied St. Pierre's motion to suppress  that statement. A jury convicted him of  both murders and an assortment of other  related charges, and a sentencing jury  chose the death penalty. On direct  appeal, the Illinois Supreme Court ruled  that both the convictions and the  sentences had to be set aside, because it  was error to admit his confession after  he had unequivocally invoked his right to  counsel and the error was not harmless  beyond a reasonable doubt. Id. at 68-69.  At that point, the case was remanded to  the Circuit Court of Cook County for  retrial.


7
Matters had barely gotten underway at  the retrial in mid-1988 before Circuit  Judge Richard Neville when St. Pierre  announced, through his attorney and to  everyone's surprise, that he wanted to  enter a blind plea of guilty. This  decision so startled Judge Neville that  he decided on his own to conduct a  hearing to decide if St. Pierre was  competent to make such a decision. At  that hearing, the judge heard evidence  from Dr. Albert Stipes, a staff  psychiatrist at the Cook County  Psychiatric Institute. Dr. Stipes opined  that St. Pierre was competent to make  this decision. Nevertheless, as the judge  repeatedly acknowledged, the record that  was building was a troublesome one. At a  hearing held in August 1988, for example,  St. Pierre told the court that a big part  of the reason why he was pleading guilty  was his dislike for the conditions at the  Cook County jail. In fact, according to  St. Pierre's court-appointed lawyer,  Robert Barasa, St. Pierre wanted to be  returned to death row while his new trial  was taking place. The judge refused to  issue such an order, but he recognized  that there was a serious issue of  competency, commenting at one point that  he did not want later reviewers of the  case to look at the transcript and wonder  "Was Mr. St. Pierre hitting on all eight  when this happened . . . ." Report of  Proceedings, Transcript of Hearing of  August 8, 1988 at 14. Dr. Stipes  confirmed that St. Pierre had also told  him that his guilty plea was motivated by  his desire to escape the unpleasant  conditions at the Cook County jail. Id.  at 23.


8
Judge Neville emphasized that he would  not accept the plea if it was motivated  solely by the living conditions concern,  but that he would accept it if St. Pierre  really meant to say he was guilty and his  desire to return to Menard Correctional  Institution was secondary. Id. at 32, 41-  42, 103. The exchange can only be called  confused yet again, but the judge  eventually decided that St. Pierre was  genuinely pleading guilty and he accepted  the plea. Id. at 110-17. After a brief  recess, St. Pierre also indicated that he  wanted to waive his right to a sentencing  jury. Id. at 119. While the judge was  trying to describe the process to St.  Pierre and to advise him of what he was  waiving, the following exchange occurred  among the state's attorney (Mr. Schultz),  the judge, and St. Pierre:


9
Mr. Schultz:  Your Honor, one thing as  to that, defendant should be advised that  their [i.e. the jury's] verdict would  have to be unanimous.


10
The Court:  And I forgot to say that,  that's right, and that both as to  eligibility and as to death or no death,  you'd be entitled to have 12 people make  that decision, and it would have to be  unanimous of all the 12 people. Do you  understand that?


11
Mr. St. Pierre:  Yes, I understand that,  Your Honor.


12
Id. at 121 (emphasis added). (The  language highlighted here is important  for the merits of St. Pierre's present  petition; we discuss it later in this  opinion.)


13
Almost immediately, St. Pierre's  attorney attempted to withdraw St.  Pierre's guilty plea: he filed a motion  to that effect on August 9, but St.  Pierre told the judge that the motion did  not reflect his intention. Report of  Proceedings, Transcript of Hearing of  August 9, 1988 at 126. After again  discussing the plea with St. Pierre,  Judge Neville denied the motion. Id. at  134. On August 23, 1988, St. Pierre's  attorney--this time at St. Pierre's  direction--filed another motion to  withdraw his guilty plea and then moved  to withdraw the withdrawal at a hearing  on September 12, 1988. Later, St. Pierre  filed more motions to withdraw the plea,  on October 13, 1988, on November 7, 1988,  and then again on February 14, 1989. The  latter three motions were presented,  however, after his sentencing hearing, to  which we now turn.


14
Having waived sentencing by a jury, St.  Pierre also decided to waive his right to  have a presentence report prepared by the  Probation Department. The court first  heard evidence on aggravating factors and  found St. Pierre eligible for the death  penalty. At the mitigation stage, St.  Pierre once again vacillated. At a  hearing held on August 10, 1988, he had  his lawyer inform the court that he  wanted to waive presentation of a  mitigation hearing. When the judge asked  him why, he replied "I just want to  proceed today. I'd just like to say one  thing, a full aggravation-mitigation  hearing would mean a lot more time at  Cook County jail and I just want to say  if this Court wants to have me go insane,  go crazy, that's it." Report of  Proceedings, Transcript of Hearing of  August 10, 1988 at 172. The judge decided  to postpone the proceedings so that  Barasa could call a mitigation witness.


15
By the time the hearing of September 12  arrived, St. Pierre had withdrawn his  request to truncate the mitigation phase  and he had decided he wanted a "complete"  mitigation hearing. The trial judge gave  him a hearing that to some degree also  included an exploration of the question  whether St. Pierre was sane at the time  of the offenses. (The record is quite  confused, however, on whether the court  regarded this issue as properly before  it, and, if not, how this evidence was to  be used in mitigation.) Monte Williams, a  psychologist employed by the Illinois  Department of Corrections, testified for  St. Pierre at that hearing. His  testimony, which the court eventually  rejected as "ridiculous," Report of  Proceedings, Transcript of Hearing of  September 12, 1988 at 329, detailed St.  Pierre's psychological problems and his  unhappy background and suggested that St.  Pierre may not have been responsible for  what he did.


16
There was more talk of St. Pierre's  mental state at a hearing on September  14, including an indication that St.  Pierre himself did not want this topic  discussed. On September 19, the court,  finding no mitigating factors sufficient  to preclude imposition of the death  penalty, sentenced St. Pierre to death  for both murders. As noted above, St.  Pierre responded with a blizzard of  motions to withdraw his guilty plea and  vacate the judgment. With the typical  conscientiousness he had shown throughout  these trying proceedings, Judge Neville  ordered St. Pierre to submit to an  additional examination by Dr. Stipes.  After he received Dr. Stipes's report, he  denied all the pending motions. On direct  appeal to the Illinois Supreme Court, the  court affirmed the convictions and  sentence. People v. St. Pierre, 588  N.E.2d 1159 (Ill. 1992) ("St. Pierre  II"). The court found that St. Pierre's  plea of guilty had been voluntary despite  his concerns about the Cook County jail,  that he had been properly informed of his  right to a sentencing jury and that this  waiver was also valid, and that St.  Pierre's other arguments were without  merit.

B.  State Post-Conviction Proceedings

17
This pattern continued unabated through  St. Pierre's post-conviction proceedings  in the state courts, his petition for  habeas corpus in the federal district  court, and his appeal in this court.  Through counsel, he filed a petition for  post-conviction relief under Ill. Ann.  Stat. ch. 38, para. 122 et seq. (Smith-  Hurd 1992) (recodified at 725 ILCS 5/122-  1), which was followed by an amended  petition that St. Pierre's attorney  indicated was served on October 6,  1994.1 The amended petition raised  eight claims that St. Pierre's rights  under the Illinois and federal  constitutions had been violated by the  proceedings that resulted in his  conviction and sentence of death. The  first of those claims was that St. Pierre  was denied his rights against compulsory  self-incrimination, a trial by jury, and  confrontation "because he was not fit to  make a waiver of his right to trial." The  second claim, to which we alluded above,  was that the trial judge affirmatively  misled him by stating that the sentencing  jury would need to be unanimous "both as  to eligibility and as to death or no  death." St. Pierre's petition pointed out  that unanimity is indeed required for the  imposition of a death sentence, but it is  not required for a jury to reject a death  sentence (i.e. a lack of unanimity on one  side or the other does not lead to a  mistrial for the sentencing phase; it  leads instead to an automatic sentence of  life imprisonment). Claims three and four  charged that the trial court and counsel  respectively had failed to apprise St.  Pierre of all the elements of the offense  and of the possibility of an insanity  defense before he entered his guilty  plea, in violation of various  constitutional rights. Claims five and  six raised charges of ineffective  assistance of counsel at the guilty plea  and sentencing proceedings. Last, claims  seven and eight made broader attacks on  the constitutionality of the Illinois  death penalty regime, in order to  preserve them for later challenges.


18
St. Pierre himself signed the amended  petition on a final page "verifying" the  truth and accuracy of all statements in  it. Shortly after his attorneys served  the amended petition, however, St. Pierre  filed a pro se motion directly in the  Illinois Supreme Court to waive further  appeals. In an order issued January 27,  1995, that court directed "the circuit  court of Cook County to conduct a full  and meaningful hearing within 60 days of  this order to determine whether Robert  St. Pierre: (1) is competent to waive  further legal actions on his behalf; and  (2) has made a knowing and intelligent  waiver of such legal actions." Following  that instruction, the circuit court  convened a hearing (on March 24, April 4,  and April 7, 1995), at which it heard  testimony from a number of psychiatrists  about St. Pierre's mental condition. Dr.  Henry Lahmeyer testified that St. Pierre  was suffering from bipolar disorder, and  explained that bipolar disorder can  affect a person's ability to make  rational decisions about his future. Dr.  Lahmeyer also testified that it was his  opinion that St. Pierre was not fit to  waive his appeals. Dr. Henry Conroe  agreed that St. Pierre had bipolar  disorder, and he added that St. Pierre  also had a mixed personality disorder  with antisocial borderline and  schizotypal features. Dr. Jonathan Kelly  had the same diagnosis as Dr. Conroe.  After Dr. Kelly testified, the court had  a brief direct exchange with St. Pierre  himself, at which time St. Pierre said:


19
Judge, with respect to the letter that  I sent to, actually hand delivered to Dr.  Kelly, with respect to my ambivalence, in  all truth right now, at this point, I  don't feel like I want to waive my  appeals.


20
But I don't want to file any motions or  anything to do that, because somewhere down the road I'll probably want to  again.


21
Report of Proceedings of the Defendant's  Motion to Waive his Appellate Rights,  Transcript of April 7, 1995 at 153-54.  The judge then pointed out that the  purpose of the hearing was not to decide  about waiver, but was instead to decide  about capacity to waive, and he informed  St. Pierre that he would have an  opportunity at a later time to take  further action. Dr. Stipes also testified  at the hearing, and he adhered to his  earlier view that St. Pierre was capable  of waiving his rights. Dr. Stipes  admitted on cross-examination that he had  never looked to see if St. Pierre had  bipolar disorder.


22
In an order issued April 24, 1995, the  trial court concluded that although St.  Pierre suffers from a psychiatric  disorder, that disorder did "not  interfere with his ability to make a  rational decision regarding the waiver of  his appeals." Memorandum Opinion at 12-  13. On the other hand, the court also  made the following findings:


23
Mr. St. Pierre has filed conflicting  documents with the Supreme Court and also  with the trial court. He has both asked  to waive further appeals and to be  executed and he has asked to in effect,  suspend the waiver.


24
Mr. St. Pierre stated twice in open  court that he still wanted to waive his  appeals and be executed. After meeting  with his brother, who he thought was  deceased and with whom he had had no  contact for several years, he stated in  open court that he was ambivalent about  presently waiving his appeals. However he  also stated that because of the  continuing incarceration he would likely  waive them again in the future.


25
The handwritten letter to Dr. Kelly,  dated April 4, 1995, also indicates a  present desire to suspend at least  temporarily his waiver of further  appeals, and indicates meeting his  brother has made him ambivalent. In the  letter he states that in the future he  may want to waive his appeals again.


26
This court finds that Mr. St. Pierre has  made a knowing and intelligent waiver of  his rights to further appeals, but has  asked the court to suspend such waiver.


27
It is the respectful recommendation of  this Court, that the post-conviction  proceeding presently on file in the  Circuit Court proceed to finality unless  and until Mr. St. Pierre notifies the  Supreme Court that he has made a final  decision regarding his waiver of appeals.


28
Id. at 14-15. That was the final word  from Judge Neville, who had presided over  St. Pierre's case from the very  beginning.


29
This had the effect of returning the  case to the Illinois Supreme Court, which  had retained jurisdiction pending the  hearing it had ordered before the circuit  court. On May 2, 1995, St. Pierre sent a  handwritten letter to the Supreme Court  (which was stamped "received" on May 4)  in which, in the final paragraph, he  "revivifie[d]" his requests to waive his  further appeals. The very next day, May  3, he sent a second handwritten letter to  the Illinois Supreme Court, in which he  "ask[ed] this Honorable Court to  disregard Appellant's requests to waive  appeals, and apologize[d] for his  ambivalence concerning these requests to  waive appeals." The May 3 letter was  stamped "filed" on May 11. The record  then shows an Order of the Illinois  Supreme Court with a file stamp of May 10  (one day before the court acknowledged  its receipt of the May 3 letter) in which  the court addressed both St. Pierre's pro  se motion to waive further appeals and a  motion filed by his lawyers to withdraw  all motions to waive appeals. The court  denied the motion to withdraw the waivers  and it granted the motion to waive  appeals, including the post-conviction  proceedings, and set an execution date of  September 20, 1995 (which obviously was  later stayed). But the court later ruled  on St. Pierre's May 3 request, through a  letter dated May 24, 1995, that stated  "THE COURT HAS TODAY ENTERED THE  FOLLOWING ORDER," and announced that St.  Pierre's pro se motion to withdraw his  motion to waive further appeals was  denied.


30
C.  District Court Habeas Corpus  Proceedings


31
St. Pierre, at least temporarily,  continued to attempt to pursue his post-  conviction challenges, through a petition  his lawyers filed under 28 U.S.C. sec.  2254 in the federal district court on  November 28, 1995. Once again, he flipped  and flopped. On January 17, 1996, he  filed a pro se motion to dismiss the  petition for habeas corpus and to waive  further federal review; on January 19,  1996, he asked, through his attorney, to  withdraw the pro se motion to dismiss his  petition (which the court allowed on July  26, 1996); on November 13, 1996, he filed  another motion to waive appeals, and on  December 17, 1996, the district court  denied that motion; on September 29,  1997, he served up yet another motion to  waive appeals, and on April 29, 1998, the  district court denied that one without  prejudice. The district court then issued  its memorandum and order disposing of the  habeas corpus petition on the merits on  August 28, 1998, from which St. Pierre  has taken his appeal.


32
In that order, the district court found  that St. Pierre had exhausted his state  remedies, but that he had procedurally  defaulted five out of the seven claims he  was attempting to raise. The defaulted  claims included Claim I, in which he  claimed that he was denied constitutional  rights because he was not fit to waive  his right to a jury trial and plead  guilty; Claim II, that he was denied  constitutional rights because the trial  court failed to inform him of all the  elements of the offense and his possible  insanity defense before accepting his  plea; Claim III, his similar claim  regarding the elements of the offense and  the insanity defense, as it related to  counsel's failure to inform him; Claim  IV, that he was deprived of effective  assistance of counsel during the guilty  plea proceedings, and Claim VI, that he  was denied effective assistance of  counsel during the sentencing  proceedings. The court rejected the  argument that this default was excused  because of St. Pierre's incapacity to  waive his appeal rights, indicating that  it was deferring to the state trial  court's finding of competence. That left  two claims that could be assessed on the  merits: Claim V, which charged that the  state court had affirmatively misled him  about the unanimity requirement in  capital sentencing in Illinois, and Claim  VII, which asserted that the Illinois  death penalty statute was applied in an  arbitrary, capricious, and  unconstitutional manner. The court found  that Claim V had to be rejected on the  strength of Enoch v. Gramley, 70 F.3d  1490 (7th Cir. 1995), in which this court  found that an instruction that a jury  would have to return a unanimous verdict  in order to impose the death sentence was  not constitutionally erroneous. Because  this court has upheld the Illinois  capital sentencing statute against  similar attacks on a number of occasions,  including in Williams v. Chrans, 945 F.2d  926 (7th Cir. 1991), and Silagy v.  Peters, 905 F.2d 986 (7th Cir. 1990), the  district court also rejected St. Pierre's  seventh claim.

II

33
In this court, St. Pierre's alternating  waivers and non-waivers have continued.  After counsel filed a notice of appeal on  his behalf and the appeal was docketed on  September 29, 1998, St. Pierre waited a  little more than two months before filing  (on December 7, 1998) his first pro se  motion to dismiss the case pursuant to  Fed. R. App. P. 42(b). As requested by  the court, counsel for both sides filed  their responses to that motion on  December 16, 1998. On December 21, 1998,  the docket sheet indicates that "the pro  se's motion to waive appeals is  WITHDRAWN." Naturally, that was not the  end of things. On the day this panel  heard oral argument, St. Pierre once  again (on March 22, 1999) filed a motion  to waive his appeals. Counsel responded,  and the panel elected to take the motion  with the case.


34
Not surprisingly, counsel for St. Pierre  have devoted most of their attention in  his brief on appeal to the question of  procedural default and to the waiver  finding that was crucial to this case.  They argue first that the Illinois  Supreme Court's purported finding of  waiver was not an adequate and  independent state ground sufficient to  support a finding of procedural default,  because the record was confused, the  finding was wholly arbitrary, and it  violated St. Pierre's due process rights.  Second, based primarily on the way the  Illinois Supreme Court handled the  waivers of another death row inmate,  Lloyd Wayne Hampton, they argue that the  Illinois court has not applied its rules  concerning waiver consistently and thus  this is not the kind of evenhanded state  procedural rule that can bar substantive  review of the petition under Hathorn v.  Lovorn, 457 U.S. 255, 262-63 (1982).  Third, they assert that the Illinois  Supreme Court's assertion of waiver  failed to satisfy the standards for this  kind of waiver established in Rees v.  Peyton, 384 U.S. 312 (1966) (per curiam),  Gilmore v. Utah, 429 U.S. 1012 (1976),  and Demosthenes v. Baal, 495 U.S. 731  (1990) (per curiam). Those cases stand  for the proposition that a waiver will  suffice in these grave circumstances only  if it is unequivocal, under oath, knowing  and voluntary, and unwavering. Next, they  argue that St. Pierre did establish both  cause and prejudice that would excuse his  defaults, noting in addition to other  points that the Illinois Supreme Court's  refusal to consider the May 2 and the May  3 letters together was arbitrary, led to  an erroneous finding of "unequivocal"  waiver, and was the kind of interference  with the defendant's rights that can, and  does here, excuse procedural default.  Last, they argue the merits of the error  in the jury instruction with respect to  the unanimity requirement. On this point,  they distinguish Enoch on the ground that  it is one thing to tell the jury that a  capital sentence must be supported by a  unanimous verdict (a correct proposition  of law), and quite another affirmatively  to tell them that a decision not to  impose the death penalty must be  unanimous (an incorrect statement). Enoch  involved only the former kind of  statement and thus has nothing to say  about St. Pierre's situation, which also  involved the latter.


35
In our view, the district court should  not have found procedural default for  Claims I-IV and VI. We base this  conclusion on the totality of the record.  This is not because we disagree with the  state trial court's finding that at any  given moment, St. Pierre could be an  intelligent, well informed individual,  who could understand the nature of the  proceedings against him and who could  cooperate effectively with counsel. Even  though we are adjudicating this case  under the substantive standards that  applied before the effective date of  AEDPA, see Lindh v. Murphy, 521 U.S. 320,  336-37 (1997), the state court's finding  on a question like competency is entitled  to a presumption of correctness. But  there are several problems with the  conclusions the Illinois Supreme Court  and the district court drew from the  state trial court's findings. First, the  fact that a snapshot of St. Pierre's  ability to function mentally showed a  competent individual could not reflect  the reality of his behavior over time.  The state trial court itself was plainly  aware of this problem, which it  highlighted in its final recommendation  to the Illinois Supreme Court (most of  which we have reproduced above). St.  Pierre had waived and withdrawn waivers  so many times by then that Judge Neville  drew the inevitable conclusion that St.  Pierre had not yet made a "final decision  regarding his waiver of appeals." The  second problem relates to the  inconclusive nature of the evidence on  which the Illinois Supreme Court relied  when it decided that the May 2 letter was  the "final decision," and that the May 3  letter was to be disregarded. No later  than the time when it was conducting the  deliberations that resulted in the May 24  order, it knew that it had not received  an unequivocal waiver from St. Pierre.  And yet it arbitrarily chose to treat the  May 2 letter as the dispositive document  and to disregard the May 3 letter. The  third problem is a more subtle one. Both  the competency hearing and the subsequent  orders from the state trial and supreme  courts demonstrate how difficult in these  circumstances it was to keep separate the  question of St. Pierre's competence as an  abstract matter and the question whether  he had actually waived his rights.


36
In the final comments it made, the state  trial court appears to have been trying  to alert the Illinois Supreme Court to  two important points: first, St. Pierre  had not yet definitively waived his right  to his post-conviction proceedings and  associated appeals, and second, that  through some mechanism or another the  Illinois Supreme Court would need to  assure itself of the fact that it had a  "final" decision, not one more in a  series of flip-flops. The first of those  two points is unassailable. As St.  Pierre's lawyers point out, the only  statement St. Pierre made on the record,  while he was under oath in court, was "I  don't feel like I want to waive my  appeals." Although he said at the same  time that he might later change his mind,  and in one pro se letter to the Illinois  Supreme Court he did so, he never  retracted that statement under similarly  formal circumstances, in which the court  could assure itself that he understood  the gravity of the move he was about to  make. In fact, even after the competency  hearing was over, St. Pierre filed a  verified motion to withdraw his previous  motions to waive his appeals.


37
As the Eighth Circuit pointed out in  O'Rourke v. Endell, 153 F.3d 560 (8th  Cir. 1998), cert. denied 525 U.S. 1148  (1999), there is an important distinction  between the question whether a defendant  is competent to waive a right and the  question whether a given waiver is  knowing and voluntary. Id. at 567.  Implicit in the question of whether a  waiver is knowing and voluntary is  whether a waiver has actually been made.  In St. Pierre's case, even if we accept  fully the conclusion of the state courts  that St. Pierre was competent to waive  his rights (though we regard this finding  as an extremely close call that we have  found unnecessary to confront here),  there is still the problem of the second  question. The state trial court made it  clear that the question of whether St.  Pierre had in fact waived his appeal  rights fell outside the scope of the  hearing it was conducting (despite the  fact that the order of the Illinois  Supreme Court requiring the hearing  specifically had asked the court to  decide whether St. Pierre had "made a  knowing and intelligent waiver"). There  was never any kind of proceeding, formal  or informal, at which any court was able  to assure itself that St. Pierre's waiver  in the May 2 letter satisfied the  requirements for a knowing and voluntary  waiver and that St. Pierre intended it to  be a waiver. The Illinois Supreme Court  conducted no inquiry in connection with  that letter. Nothing even remotely  resembling the kind of procedures that  are necessary to assure the validity of a  waiver in analogous circumstances, such  as the acceptance of a guilty plea,  occurred. See Fed. R. Crim. P. 11; Brady  v. United States, 397 U.S. 742, 748  (1970); see also Faretta v. California,  422 U.S. 806, 835-36 (1975) (right to  counsel); Boles v. Stevenson, 379 U.S.  43, 45 (1964) (per curiam) (voluntariness  of confession); Johnson v. Zerbst, 304  U.S. 458, 464-65 (1938) (right to  counsel); United States v. Estrada-  Bahena, 201 F.3d 1070, 1071 (8th Cir.  2000) (right to appeal); United States v.  Duarte-Higareda, 113 F.3d 1000, 1002 (9th  Cir. 1997) (right to jury trial); United  States v. Kellum, 42 F.3d 1087, 1097 (7th  Cir. 1994) (guilty plea); United States  v. Bushert, 997 F.2d 1343, 1350-52 (11th  Cir. 1993) (right to appeal sentence);  United States v. Wessells, 936 F.2d 165,  168 (4th Cir. 1991) (right to appeal).


38
Lest we be misunderstood, we hasten to  add that we are not suggesting that the  Constitution requires the state to adopt  something equivalent to Fed. R. Crim. P.  11 for waivers of appeals or post-  conviction proceedings. On the other  hand, it is indisputable that the  Constitution does require a waiver that  literally carries with it life-or-death  consequences to be made knowingly and  intelligently. See, e.g., Gilmore v.  Utah, 429 U.S. at 1013. In Demosthenes v.  Baal, supra, the state court held an  evidentiary hearing at which it resolved  both the question of competence and the  question whether Baal had intelligently  waived his right to pursue postconviction  relief. See 495 U.S. at 733, 735. At that  hearing, the court was able to hear and  evaluate Baal's own testimony that he did  not wish to continue his postconviction  hearing and that he understood perfectly  what he was doing. Id. at 733, 110 S.Ct 2223.


39
Here, in contrast, the Illinois Supreme  Court had no idea of the circumstances  under which St. Pierre wrote the May 2  letter. It took no steps, either itself  or with the assistance of further  proceedings in the state trial court, to  assure itself that St. Pierre was making  this decision unequivocally, permanently,  voluntarily, and intelligently. Nor did  the court reveal why it had apparently  decided that the May 2 pro se letter was  a knowing, intelligent, and definitive  waiver, in the face of St. Pierre's  letter written 24 hours later expressing  exactly the opposite preference. The last  word from St. Pierre in open court had  been his statement that he did not wish  to waive his rights, which was what  prompted Judge Neville to conclude that  he had not yet made a final decision. We  recognize that at the time the Illinois  Supreme Court issued its May 10 order  granting St. Pierre's motion to waive  further appeals, the record indicates  that the court did not yet know about the  May 3 letter. However, before it issued  its May 24 order, it knew that the  factual basis on which it had proceeded  for the May 10 order did not reflect the  full story, and that the full story  showed that St. Pierre had dispatched the  May 3 retraction virtually as soon as the  May 2 letter was out of his hands. Given  the circumstances of this case and the  history of St. Pierre's behavior, the  acceptance of St. Pierre's May 2 letter  as the "final" word does not meet the  standards for waiver that the Supreme  Court established in Gilmore and in Baal.  See Whitmore v. Arkansas, 495 U.S. 149,  165-66 (1990); Drope v. Missouri, 420  U.S. 162, 182-83 (1975); see also Comer  v. Stuart, 215 F.3d 910, 917-18 (9th Cir.  2000) ("Even if the district court finds  that [the petitioner] is competent to  withdraw this appeal, it must also  determine the separate question of  whether the purported decision is  voluntary."); Mata v. Johnson, 210 F.3d  324, 331 (5th Cir. 2000) (holding if  petitioner's competency to waive  collateral review is in question, "the  court can afford such petitioner adequate  due process by [ordering a competency  hearing] and, on the record and in open  court, questioning the petitioner  concerning the knowing and voluntary  nature of his decision to waive further  proceedings"). And if the waiver was not  effective, it cannot serve as the basis  of a finding of procedural default for  purposes of federal habeas corpus  proceedings. See O'Rourke, 153 F.3d at  567-69; Wilkins v. Bowersox, 145 F.3d  1006, 1011-16 (8th Cir. 1998); Johnson v.  Cowley, 40 F.3d 341, 344 (10th Cir.  1994); Allen v. Alabama, 728 F.2d 1384,  1388, modified on other grounds on reh'g  in part 732 F.2d 858, order corrected by  735 F.2d 1276 (11th Cir. 1984); see also  Meeks v. Singeltary, 963 F.2d 316, 320-21  (11th Cir. 1992).


40
We are not unsympathetic to the  predicament in which both the Circuit  Court of Cook County and the Illinois Supreme Court found themselves, in the  face of St. Pierre's ceaseless changes of  heart. This does not, however, relieve  any court of the duty to ensure that a  definitive waiver has occurred before it  deprives the petitioner of remedies that  are available under state law.  (Obviously, the state has no obligation  to provide appellate or post-conviction  remedies, but if it has chosen to do so,  due process principles apply to the terms  on which these remedies must be furnished  or lost. Gilmore itself involved similar  post-conviction remedies, and the Supreme  Court had no hesitation in holding the  state to these fundamental standards.)


41
The same problem can arise in federal  proceedings, and indeed has arisen here  in the way St. Pierre has conducted  himself. Although we cannot prescribe  rules for the way the state courts handle  such matters, we can offer suggestions to  our own district courts. In circumstances  similar to those we have here, the Eighth  Circuit adopted an approach that quickly  and efficiently puts an end to endless  vacillation and allows resolution of  cases. In Smith v. Armontrout, 865 F.2d  1502 (8th Cir. 1988) (en banc), the full  court found that Smith, a Missouri state  prisoner under a sentence of death, had  effectively waived his right to appeal  from a district court's judgment denying  his petition for a writ of habeas corpus,  even though certain next friends tried to  persuade the court that it should set  aside his waiver and decide the case on  the merits. In a separate statement at  the end of the opinion, however, the  authoring judge, Judge Arnold, had this  to say:


42
The possibility always exists that Mr.  Smith may change his mind again. We  direct the respondent Armontrout to  deliver to Mr. Smith in person a copy of  this opinion. If Mr. Smith changes his  mind again, we direct the respondent  Armontrout to inform the Clerk of this  Court at once. The writer of this opinion  believes that Smith's petition for habeas  corpus, considered on its merits, is not  frivolous. If Smith changes his mind  about pursuing his remedies, it is my  intention to grant a certificate of  probable cause and issue a stay of  execution, pending determination by this  Court of the appeal on its merits.


43
865 F.2d at 1507 n.6. Judge Arnold proved  to be prescient: Smith himself did change  his mind and did file a letter with the  Clerk of the court "expressing his desire  to prosecute the remedies provided by law  with respect to each of the two  convictions." Smith v. Armontrout, 865  F.2d 1515 (8th Cir. 1989). Judge Arnold  followed through with his statement in  the footnote and granted a certificate of  probable cause and a stay of execution.  Id. at 1516. Importantly for our  purposes, however, were his final  observations after taking that step:


44
. . . The various backings and fillings  that have taken place in this case have  made it, to say the least, less than  simple. The important point for present  purposes is that this Court has never  passed on the merits of Smith's attack on  his conviction in No. 88-2359. The  District Court has decided that the  attack lacks merit, but Smith has a  statutory right of appeal to this Court.  And, in No. 88-2702, as just remarked, no  federal court has yet passed on the  merits of Smith's habeas corpus petition.  He is entitled to a decision on his  petition under the Act of Congress that  assigns habeas jurisdiction to the lower  federal courts.


45
Finally, I wish to add that I am not  disposed to consider any further changes  of mind in these cases. As far as I am  concerned, Gerald Smith has made his  election to proceed, and the courts  should also proceed to decide the merits  of his petitions with all reasonable  expedition.


46
Id.


47
In our view, the standard used by Judge  Arnold in the context of granting a  certificate of probable cause has much to  recommend itself. There must be an end-  point to a defendant's efforts repeatedly  to waive and un-waive her rights.  Normally, that end-point occurs when a  court has before it reliable evidence  that a waiver was, in the words of  Johnson v. Zerbst, supra, an intentional  relinquishment of a known right, and that  it was made under circumstances that  drove home to the defendant the  importance of what she was doing. In  cases like the one the Eighth Circuit  faced in Smith v. Armontrout, or in our  case, not only the defendant but society  as a whole has a particularly strong  interest in the regularity of the  proceedings that are followed; there is  no un-doing a sentence of death once it  is carried out. These proceedings will go  forward more quickly, and they will  conclude in a result recognized by all to  be legitimate, if the district courts  follow the presumption Judge Arnold  adopted and take a retraction of a waiver  as the final word. In essence, this is  what we have done in this case, when we  decided to take St. Pierre's latest  motion to waive his appellate rights  along with the case. We hereby deny that  motion.


48
Returning to St. Pierre's case, we  conclude that because the record before  the Illinois courts does not establish  any clear waiver from St. Pierre of his  right to pursue his post-conviction  remedies there, and because the May 2  handwritten letter to the Illinois  Supreme Court was neither written nor  filed under circumstances that assured  its compliance with governing Supreme  Court standards, St. Pierre's actions in  the Illinois courts did not amount to  procedural default for federal habeas  corpus purposes. We therefore reverse the  district court's decision dismissing  Claims I, II, III, IV, and VI on  procedural default grounds and remand  those claims for a decision on the  merits. We affirm the district court's  decision dismissing Claim VII, for the  reasons stated by that court.


49
Claim V requires separate consideration,  and in the final analysis is an  independent ground for ordering further  proceedings. St. Pierre argues in his  habeas petition that his waiver of a jury  for sentencing was not "knowing" because  Judge Neville improperly instructed him  on Illinois's requirement that a  sentencing jury's determination be  unanimous. St. Pierre maintains that  Neville's instruction left him with the  erroneous impression that only a  unanimous jury could prevent him from  receiving a death sentence (rather than  impose a death sentence).


50
The district court found that St.  Pierre's claim was without merit based on  Enoch v. Gramley, supra. Like St. Pierre,  Enoch argued that his waiver of a capital  sentencing jury was invalid because he  may have understood that jury unanimity  was required both to impose and not to  impose the death penalty. The trial court  instructions in Enoch, however, differ  from those at issue here. In Enoch, the  trial judge explained to the defendant  that in order for the death penalty to be  imposed, the jury would have to return  unanimous verdicts in favor of the death  penalty at each stage of the proceedings.  We found that the trial court's  instructions were not confusing or  ambiguous:


51
. . . The trial court's instruction to  Enoch was not ambiguous. If the death  penalty, as the court stated, could be  given only if the jury is unanimous that  it should be given, it is not reasonable  to conclude that unanimity is required to  avoid the death penalty.


52
There were only two possible decisions  for the jury: impose the death penalty or  decline to impose it. If unanimity is  required for one and it is not achieved,  the other results. To assume that Enoch  unreasonably misunderstood the court's  instruction would force courts to  mistrust all knowing and intelligent  waivers by defendants.


53
70 F.3d at 1506.


54
This case is different from Enoch. As  the Enoch court pointed out, it is not  reasonable to conclude from a simple  instruction that unanimity is required to  impose the death penalty that unanimity  is also required to decline to impose it. However, Judge Neville's instruction--  unlike the instruction in Enoch--gave a  choice between the two: "both as to  eligibility and as to death or no death,  you'd be entitled to have 12 people make  that decision, and it would have to be  unanimous as to all the 12 people"  (emphasis added). Given this choice, it  would not necessarily have been  unreasonable for St. Pierre to conclude  that unanimity was required to avoid the  death penalty. We note as well that even  if the Constitution does not require a  capital defendant to be informed of the  unanimity requirement--a question we do  not reach here--affirmative  misinformation is an entirely different  problem.


55
This sort of misinformation may make a  defendant's waiver of his right to a  capital sentencing jury invalid. In Hall  v. Washington, the petitioner's attorney  advised him, prior to trial, that the  difference between a jury trial and a  bench trial was that "unanimity would be  necessary and required in a jury  setting," and, in contrast, if a judge  decided the case "it would be his  decision alone." 106 F.3d 742, 753 (7th  Cir.), cert. denied 522 U.S. 907 (1997).  No one explained Illinois's "one-juror"  rule for capital sentencing, 720 ILCS  5/9-1(g), and, before the sentencing  phase was to begin, his attorney merely  told him that he had the right to have a  "jury determination" or "a judge's  determination." 106 F.3d at 753. Finding  that his attorney's explanations may have  misinformed or misled the petitioner  about the consequences of unanimity, we  concluded that the petitioner had  received ineffective assistance of  counsel. Id.


56
The government argues that, regardless  of the instruction's clarity, St.  Pierre's waiver was knowing and  intelligent because he had other  opportunities to learn about the  unanimity requirement. Although the  government points to many facts that may  indicate that St. Pierre did understand  the unanimity requirement, it would be  inappropriate for us to make such a  factual finding in these proceedings.


57
Therefore, we also remand Count V to the  district court for further fact-finding.


58
In summary, we Reverse the court's  finding of procedural default on Counts  I, II, III, IV, and VI and we Reverse the  court's rejection of Count V. Those  counts are Remanded for further  proceedings consistent with this opinion.  We Affirm the dismissal of Count VII.



Notes:


1
 For unexplained reasons, the file stamp on the  document from the court shows a date of February  16, 1995. The difference appears to be due to St.  Pierre's unabated efforts to waive and withdraw  his waivers, as we explain in the text.


