United States District Court, E.D. Wisconsin
JOEL D. RHODES, Petitioner,
MICHAEL DITTMANN, Warden, Columbia Correctional Institution, Respondent.
DECISION AND ORDER
LYNN ADELMAN District Judge
In 2013, Joel Rhodes filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in a Wisconsin trial court of one count of kidnapping and one count of aggravated battery. In his petition, Rhodes alleged three grounds for relief: (1) that he did not voluntarily, knowingly, and intelligently waive his Sixth Amendment right to counsel at trial; (2) that even if his waiver was valid, he was denied his right to counsel because he was not allowed to revoke his waiver; and (3) that he was denied his right to counsel when the county jail prevented Rhodes from meeting with a lawyer during the weekend before his trial commenced. In a prior order, I granted Rhodes’s petition on the second ground. See Rhodes v. Meisner, 7 F.Supp.3d 880 (E.D. Wis. 2014). The Seventh Circuit reversed. See Rhodes v. Dittmann, 783 F.3d 669 (7th Cir. 2015). Following remand, the parties filed supplemental briefs on the waiver and jail-access grounds. I consider those grounds in this order.
In 2002, Rhodes was charged with two counts of kidnapping. He retained Attorney Peter Kovac as trial counsel. A jury acquitted Rhodes of one of the kidnapping charges, but a different jury convicted him of the other. When he appealed the conviction, Rhodes argued, among other things, that Kovac had been ineffective. However, the court of appeals did not reach this issue because the state conceded that Rhodes’s conviction had to be vacated on other grounds. The case was remanded for a new trial.
On remand, the state public defender appointed Richard Kaiser to represent Rhodes, and the state filed an amended information to add an aggravated battery charge to the remaining kidnapping charge. The trial of both charges was scheduled to begin on Monday, May 7, 2007.
On March 13, 2007, Attorney Kaiser filed a motion on behalf of Rhodes requesting permission for Rhodes to represent himself. In the motion, Kaiser stated that, on March 9, 2007, Rhodes informed him that he wished “to assume personal representation in this case for the remainder of the proceedings, including conducting his own jury trial.” ECF No. 18-1 at 1. Kaiser stated that Rhodes
voiced a distinct lack of faith in defense counsel’s judgment relating to some of the more recent trial strategy decisions made. He likewise voiced a lack of trust, going so far as to suggest that counsel may have shared confidential information with the State concerning defense decisions which in turn prompted the State to add additional witnesses for trial. Mr. Rhodes stated that he no longer trusted counsel and did not wish him to be further involved in the defense of his case.
Id. at 1-2. Kaiser also stated that Rhodes’s “stated preference for representing himself is not a completely new development, ” and that “statements by Rhodes over the past several months indicated that he was at least thinking about making such a request at various times during this representation.” Id. at 2. After setting forth his belief that Rhodes was competent to represent himself and that his waiver was being made voluntarily and intelligently, Kaiser stated that Rhodes “indicates he will be ready to try the case on [May 7, 2007] and is seeking no adjournments.” Id. at 4.
On April 2, 2007, the court held a hearing on Rhodes’s motion to represent himself. The court began the hearing by asking Rhodes why he wanted to represent himself. Rhodes said that he just felt like he could represent himself better than Attorney Kaiser could. ECF No. 16-1 at 2. Rhodes also said that he felt that Kaiser was too “passive” and “friendly” with the prosecutor. Id. at 3-4. The court then turned to Kaiser, and Kaiser described some of the events that he thought caused Rhodes to want to represent himself. Eventually, the court decided that it had not heard enough to allow Kaiser to withdraw and to allow Rhodes to represent himself. Id. at 16. It adjourned the hearing until April 6 and stated that, in the interim, the court expected Kaiser and Rhodes to attempt to resolve their differences. Id. at 17. The court also warned Rhodes about the risks of self-representation, including that he was not “schooled in the rules of evidence” and therefore would not know how to present evidence, how to ask questions, and how to cross-examine witnesses. Id. at 18.
When the hearing resumed on April 6, Kaiser informed the court that Rhodes still wished to represent himself. The court then engaged in an extensive exchange with Rhodes about his decision to waive his right to counsel. The court made sure that Rhodes understood the risks and difficulties of self-representation, as well as the benefits of counsel. The court also advised Rhodes that even if he and Kaiser could not get along, he had a right to ask for new appointed counsel, which the court would allow “if it was appropriate.” ECF No. 14 at 12. The court asked Rhodes whether, despite of this, he still wished to represent himself, and Rhodes said he did. The court also advised Rhodes that, if he could afford it, he had the right retain his own counsel. Rhodes said that he understood. The court also questioned Rhodes about his knowledge of the rules of evidence and whether he had ever been treated for a mental disease or defect. Rhodes said that he did “not yet” know anything about the rules of evidence, and that although he had been taken to a mental-health facility and evaluated by a psychologist, he had never been diagnosed with a mental disease or defect or received treatment for one. Id. at 15-16. As the colloquy continued, Rhodes repeatedly affirmed that he understood his right to either appointed or retained counsel and the risks of self-representation but preferred to represent himself.
Towards the end of the colloquy, the court handed Rhodes a written waiver form and instructed him to go over it with Attorney Kaiser. At this point, Rhodes interjected: “Judge, I want to say one more thing. I was in the process of hiring Attorney Kovac but I don’t know what happened, he here in the courtroom today.” ECF No. 14 at 23. When the court asked Rhodes what he meant by that, Rhodes responded: “I don’t know if he taking the case or not. I don’t know if he-I don’t know if he’s taking the case.” Id. at 23. The court then turned to Attorney Kovac, who was present in court and had also attended the April 2 hearing.
Kovac informed the court that Rhodes had asked him to attend the hearings, and that Rhodes had expressed interest in retaining Kovac as trial counsel. Kovac said that he told Rhodes that he had two concerns, the least important of which was “financial.” ECF No. 14 at 25. His other concern was lack of preparation, and Kovac said that he told Rhodes that he could not “be fairly prepared to try the case on May 7th.” Id. at 26. The court then asked Kovac whether he had been retained in this case, and Kovac said no. He added that he believed Rhodes would be able to resolve the financial concern, but that his inability to be prepared for trial precluded him from accepting the representation.
By this point, Rhodes had completed and signed the written waiver form and returned it to the court. The court then again admonished Rhodes about the difficulties he would face trying the case without a lawyer:
THE COURT: Now, you’re a layperson and you understand the difficulty that it is in trying a case and ...