In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3451

ROBERT ST. PIERRE,

Petitioner-Appellant,

v.

ROGER D. COWAN, Warden,
Menard Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 95 C 5040--Charles P. Kocoras, Judge.


Argued March 22, 1999--Decided June 28, 2000



  Before Bauer, Flaum, and Diane P. Wood,
Circuit Judges.

  Diane P. Wood, Circuit Judge. 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waived and withdrawn waivers, to the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.
I

  A. Proceedings on Conviction and
Sentencing

  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.

  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.

  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.

  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.

  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.

  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:

  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.

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

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.)

  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.

  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.

  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.

  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

  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.

  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:

  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.

  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.

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.

  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:

  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.

  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.
  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.

 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.

  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.

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

  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.


  C. District Court Habeas Corpus
Proceedings

  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.

  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

  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.

  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.

  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.

  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.

  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).

  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.

  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, 2000 WL 719454, *6 (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).

  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.)

  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:

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.

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:

. . . 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.

  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.

Id.

  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.

  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.

  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).

  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:

. . . 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.

  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.

70 F.3d at 1506.

  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.

  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.

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

  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.



/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.
