NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 3, 2010*
Decided September 14, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐2197
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Northern District of Illinois, Eastern
Division.
v.
No. 07 C 6321
ANGEL FIGUEROA,
Defendant‐Appellant. Wayne R. Anderson,
Judge.
O R D E R
Angel Figueroa appeals from the district court’s denial of his petition for collateral
relief under 28 U.S.C. § 2255. The petition raises several challenges to his convictions and
sentence, and we granted a certificate of appealability to resolve one of them: whether the
*
This appeal is successive to case no. 06‐3022 and has been submitted to this panel
under Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs
and the record. See FED. R. APP. P. 34(a)(2).
No. 09‐2197 Page 2
district court adequately informed Figueroa of his right to counsel. We now affirm the
district court’s judgment.
Federal officers caught Figueroa trying to purchase heroin from a drug courier.
Although Figueroa did not request assistance under the Criminal Justice Act, he received
temporary representation from a federal defender at his initial appearance. The minute
order reflecting his initial appearance notes in summary fashion that “defendant was
informed of his rights.” Figueroa retained counsel within a week of his arrest but replaced
her less than a year later. It was with his second retained attorney that Figueroa proceeded
to trial, where he was found guilty of the drug conspiracy.
Figueroa fired his trial counsel shortly after the verdict. Sentencing was delayed
over two years as the court allowed Figueroa to retain and fire a succession of five more
lawyers. Figuero understood his right to counsel, stating in writing to the court that he “has
a Sixth Amendment Right to be represented by counsel at all critical stages of the defense.”
The court also advised him that he had the right to represent himself. Figueroa refused to
attend the hearing on his final lawyer’s motion to withdraw, so the district court locked in a
date for sentencing and told the withdrawing lawyer to inform Figueroa that the date was
firm and that he or a retained lawyer of his choice should plan to attend.
Figueroa appeared pro se at sentencing. The district court imposed a term of 240
months’ imprisonment, the mandatory minimum. After announcing the sentence the court
asked Figueroa if he wanted court‐appointed counsel for appeal. Not wanting to spend
more money on legal fees, Figueroa claimed that he did. The court offered to move quickly
so that an attorney could “spring into action.”
Despite the court’s offer and Figueroa’s professed desire for appointed counsel, he
filed a timely notice of appeal pro se. Before briefing commenced we issued an order asking
whether Figueroa wished to proceed on appeal without counsel or request an appointed
attorney. His response was unequivocal: “It is the position of Appellant that he can perfect
his appeal without counsel in this matter. As such, no request for appointment of counsel
will be presented to the court for consideration.” On direct appeal Figueroa’s arguments
focused on his right under the Speedy Trial Act to a timely indictment and trial; he did not
raise an argument concerning his right‐to‐counsel. In his current petition, he contends he
was denied his right to a timely indictment, his right to counsel at sentencing, and his right
to counsel on appeal. The certificate of appealability limits our review to the question
whether the district court adequately informed Figueroa of his right to counsel.
The record shows by Figueroa’s conduct and words that he understood his right to
counsel. Indeed, Figueroa squeezed all he could from the right, delaying his sentencing for
No. 09‐2197 Page 3
two years while he cycled through private attorneys. When at last the court set a firm date
for sentencing and presented him with two choices—hiring a lawyer or proceeding pro se
—he chose the second, an implicit waiver of the first. See United States v. Alden, 527 F.3d
653, 660 (7th Cir. 2008); United States v. Oreye, 263 F.3d 669, 670 (7th Cir. 2001). True, the
district court did not mention at the hearing before sentencing the familiar third option, that
Figueroa may be entitled to an appointed lawyer, but Figueroa made no claim of indigency
after over two years of retaining private attorneys. In any case, the minute order from
Figueroa’s initial appearance, during which appointed counsel actually represented him,
states that he was “informed of his rights.” We understand this to mean, based on the
federal rules governing initial appearances, that he was informed of his right to request that
counsel be appointed. FED. R. CRIM. P. 5(d)(1)(B). Therefore, we are satisfied that the court
discharged its duty to inform Figueroa of his right to appointed counsel.
Figueroa also renews his argument that he was denied assistance of counsel on
appeal when the district court failed to appoint a lawyer for his direct appeal. We interpret
this argument as an implicit request to expand the certificate of appealability, which was
limited to whether the district court adequately informed Figueroa about his right to
counsel. We will amend a certificate of appealability only on a substantial showing of the
denial of a constitutional right. See Ouska v. Cahill‐Masching, 246 F.3d 1036, 1045 (7th Cir.
2001). Of course, Figueroa had a constitutional right to counsel on direct appeal, see Evitts v.
Lucey, 469 U.S. 387, 402 (1985). And the district court neglected to appoint a lawyer for his
direct appeal after Figueroa requested one. But before briefing proceeded on direct appeal,
and therefore before the neglect could harm Figueroa, we gave him the option of requesting
counsel. He elected to proceed pro se, thereby intentionally abandoning his right to
counsel. Because of this express waiver, and because the constitutional right of self‐
representation at trial has no analog on appeal, see Martinez v. Court of Appeals of California,
Fourth Appellate Dist., 528 U.S. 152, 160‐61 (2000), we decline to expand the certificate of
appealability.
AFFIRMED.