In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3407
RASHAAD A. IMANI,
Petitioner‐Appellant,
v.
WILLIAM POLLARD,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin
No. 11‐cv‐677‐wmc — William M. Conley, Chief Judge.
____________________
ARGUED JANUARY 13, 2016 — DECIDED JUNE 22, 2016
____________________
Before WOOD, Chief Judge, and BAUER and HAMILTON, Cir‐
cuit Judges.
HAMILTON, Circuit Judge. The Sixth Amendment guaran‐
tees a mentally competent defendant the right to represent
himself in a criminal trial, no matter how foolish that choice
may seem. Faretta v. California, 422 U.S. 806 (1975). This con‐
stitutional right “exists to affirm the dignity and autonomy of
the accused and to allow the presentation of what may, at least
2 No. 14‐3407
occasionally, be the accused’s best possible defense.” McKaskle
v. Wiggins, 465 U.S. 168, 176–77 (1984). A judge may not deny
a competent defendant’s timely invocation of his right. See
Faretta, 422 U.S. at 835–36.
Petitioner‐appellant Rashaad Imani tried to exercise his
right to represent himself in a criminal prosecution in the Wis‐
consin state courts. The trial judge prevented him from doing
so. Imani was convicted at a trial in which he was represented
by a lawyer he did not want. A divided Wisconsin Supreme
Court affirmed his conviction, finding that Imani was not
competent to represent himself and had not made a suffi‐
ciently knowing and voluntary choice to do so. That decision
was an error. Further, it was contrary to and an unreasonable
application of clearly established federal law as determined
by United States Supreme Court decisions, thus satisfying the
stringent standard for federal habeas corpus relief under 28
U.S.C. § 2254(d)(1). Imani is entitled to a writ of habeas corpus
ordering either his prompt release or a new trial.
I. Factual and Procedural Background
In 2006, petitioner Rashaad Imani and his cousin, Raziga
Imani, were charged with robbing a bank in Menomonee
Falls, Wisconsin. (We refer to petitioner Rashaad Imani
simply as “Imani.”) While fleeing the police after the robbery,
a robber forced a driver to give him a ride. Police later recov‐
ered Imani’s fingerprints from the car’s door handle, and the
driver identified Imani, first in a photo array and later in court
at a preliminary hearing. Prosecutors charged Imani with
armed robbery and possession of a firearm by a felon. Raziga
Imani was also charged. Shortly before trial he pled guilty,
and he then testified against Imani at trial.
No. 14‐3407 3
Before trial, Imani’s lawyer moved to suppress the driver’s
identification, arguing that it had been tainted by a television
news report about the robbery. After the court denied the mo‐
tion, Imani invoked his right to represent himself. He said he
was not satisfied with his lawyer, who had not shown a re‐
cording of the television news report to the driver at the sup‐
pression hearing. Imani said his lawyer’s representation of
him at the hearing gave him doubts about the lawyer’s ability
to represent him “well enough” at trial. Imani also said he was
not satisfied with his lawyer’s efforts to investigate the finger‐
print evidence against him. Imani acknowledged that he
might not be as “eloquent in speech” as his lawyer, but he said
he had “been dealing with this case for over a year now” and
knew how to express himself well. Imani added, “ain’t no‐
body going to represent myself better than me.”
After Imani explained his reasons for choosing to repre‐
sent himself, the judge asked: “What do you want to say to
me to convince me that you’re competent to represent your‐
self?” Imani said he had been “working on this for 13
months,” but the judge dismissed Imani’s work on his case as
“irrelevant and unconvincing.” The judge then directed Imani
to focus on his “formal education.” Imani said that he had a
tenth‐grade education, that he read at a college level, and that
he had appeared in court for at least five previous criminal
matters, although he was represented by lawyers in those
cases.
The judge said Imani could not represent himself, treating
the matter as a request that required the judge’s permission.
The judge said that Imani did not have a “sufficiently rational
basis” to justify his decision. He described Imani’s decision as
“a flippant short term or immature decision” that should not
4 No. 14‐3407
be given effect, and he described Imani’s reasons for wanting
to represent himself as “episodic driven,” stemming from his
loss of the suppression motion. The judge also cited the need
to keep the trial on schedule and the increased difficulty of
preparing for what he then expected to be a two‐defendant
trial. At that time, however, there were still four weeks until
the trial was scheduled to begin, and Imani said that he had
no problem with the trial date. The judge said that, upon a
further request, he would reconsider Imani’s motion. There
was no further request.
The case proceeded to trial. Imani was represented by
counsel and was found guilty. On direct appeal, the Wiscon‐
sin Court of Appeals reversed the conviction and ordered a
new trial because Imani had not been allowed to represent
himself. State v. Imani, 771 N.W.2d 379 (Wis. App. 2009). The
appellate court’s opinion focused on the trial court’s failure to
conduct the full colloquy required by State v. Klessig, 564
N.W.2d 716, 721 (Wis. 1997). The state petitioned for review
by the Wisconsin Supreme Court.
The Wisconsin Supreme Court reversed the appellate
court and affirmed Imani’s conviction. The Supreme Court
found that while the trial court did not conduct the full collo‐
quy required by Klessig, the trial court had properly deter‐
mined that Imani “did not make a deliberate choice to pro‐
ceed without counsel” and “was unaware of the difficulties
and disadvantages of self‐representation.” State v. Imani, 786
N.W.2d 40, 44–45 (Wis. 2010). The Wisconsin Supreme Court
also concluded that “the circuit court’s determination that
Imani was not competent to proceed pro se is supported by
the facts in the record.” Id. at 45. The court did not identify
any mental illness or specific disability, and none is apparent
No. 14‐3407 5
from the trial court record. See id. at 54. Based on the conclu‐
sion that Imani could not have validly waived his right to
counsel, the Wisconsin Supreme Court held that the trial court
was required to refuse his attempt at representing himself.
Imani then filed a petition in federal district court for a
writ of habeas corpus under 28 U.S.C. § 2254. The district
court concluded that the state court finding that Imani was
not competent to represent himself “would appear to violate
the right to self‐representation found in Faretta.” Imani v. Pol‐
lard, 2014 WL 4828876, *13 (W.D. Wis. Sept. 29, 2014). “If any‐
thing,” the court wrote, “the record indicates that petitioner
was both articulate and capable of expressing arguments con‐
cerning his defense.” Id. at *14. The district court denied
Imani’s petition, however, concluding that the state trial court
did not contradict Faretta in finding that Imani’s invocation of
his right to represent himself was not knowing and voluntary.
The district court granted a certificate of appealability under
28 U.S.C. § 2253.
II. Analysis
Where state courts have rejected a prisoner’s federal con‐
stitutional claim on the merits, a federal court may not grant
a writ of habeas corpus on that claim unless the state court
decision “was contrary to, or involved an unreasonable appli‐
cation of, clearly established Federal law, as determined by
the Supreme Court of the United States” 28 U.S.C.
§ 2254(d)(1). This standard gives state courts “deference and
latitude.” Harrington v. Richter, 562 U.S. 86, 101 (2011). To ob‐
tain federal relief, a petitioner must show that the state court
decision was not just wrong, but wrong to the extent that no
“fairminded jurists could disagree on the correctness of the
state court’s decision.” Id. (internal quotation marks omitted).
6 No. 14‐3407
A state court decision is contrary to clearly established Su‐
preme Court precedent, and thus habeas relief is warranted,
“if it applies a rule that contradicts the governing law set forth
in our cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of this Court but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005).
Even under this demanding standard, Imani is entitled to
federal habeas corpus relief. The Wisconsin Supreme Court
decision was flatly contrary to Faretta and its progeny in three
distinct ways. First, the state court in effect required Imani to
persuade the trial judge that he was making a knowing and
voluntary decision to waive the right to counsel when it was
actually the judge’s job to make sure that Imani’s waiver
would be knowing and voluntary. Second, the state court re‐
quired Imani to persuade the trial judge that he had a good
reason to choose self‐representation. Under Faretta, however,
a defendant’s reason for choosing to represent himself is im‐
material. Defending pro se will almost always be foolish, but
the defendant has the right to make that choice, for better or
worse. Third, the state court imposed a competence standard
much more demanding than Faretta and its progeny allow, as
if the issue were whether Imani was an experienced criminal
defense lawyer. Imani’s education and communication abili‐
ties are materially indistinguishable from those in Faretta, and
the Wisconsin courts identified no mental illness or impair‐
ment that might have rendered Imani incompetent as allowed
by Indiana v. Edwards, 554 U.S. 164 (2008). We explain these
errors in turn.
A. Knowing and Voluntary Waiver
By invoking his Faretta right, an accused simultaneously
exercises his right to represent himself and waives his right to
No. 14‐3407 7
counsel. Faretta is therefore challenging for trial courts to ad‐
minister. Self‐representation is a Sixth Amendment right, and
a trial court may not deny its timely exercise by a competent
defendant. Faretta, 422 U.S. at 834–36. On the other hand, if
the waiver of the right to counsel is not knowing and volun‐
tary, the conviction will not stand. Before allowing a defend‐
ant to proceed without counsel, a trial court therefore has the
duty to warn a defendant about what he is getting himself
into, but the court cannot just deny the defendant the right he
has invoked. The imperative of a knowing and voluntary
choice is a requirement for valid waiver of the right to counsel;
it is not a condition that must be fulfilled before an accused
may be “allowed” to exercise his Sixth Amendment right to
represent himself.
Supreme Court decisions make clear both a trial court’s
duty to warn but also the narrow limits on its power to pre‐
vent exercise of the right of self‐representation. The Court
acknowledged in Faretta that “the right of an accused to con‐
duct his own defense seems to cut against the grain of this
Court’s decisions holding that the Constitution requires that
no accused can be convicted and imprisoned unless he has
been accorded the right to the assistance of counsel.” 422 U.S.
at 832. Because of that, a defendant “should be made aware of
the dangers and disadvantages of self‐representation, so that
the record will establish that he knows what he is doing and
his choice is made with eyes open.” Id. at 835 (internal quota‐
tion marks omitted); see also Iowa v. Tovar, 541 U.S. 77, 88–89
(2004) (noting that “before a defendant may be allowed to
proceed pro se, he must be warned specifically of the hazards
ahead”).
8 No. 14‐3407
Here, the Wisconsin Supreme Court transformed the re‐
quirement of knowing and voluntary waiver from a duty of
the trial judge into a burden on the accused. If a trial court’s
inquiry does not demonstrate that an accused’s choice was
knowing and voluntary, the court held, “the court cannot per‐
mit the defendant to represent himself.” Imani, 786 N.W.2d at
50. The effect of that holding was to deny Imani his constitu‐
tional right because the trial judge failed to conduct a full col‐
loquy to establish knowing and voluntary waiver of the right
to counsel. In dissent, Justice Crooks correctly explained that
the majority erred by shifting “the responsibility to the de‐
fendant” to demonstrate his knowing and voluntary waiver.
Id. at 59.
Putting the burden on the defendant to inform himself of
the dangers of self‐representation is flatly contrary to Faretta.
Such a burden would require legally uninformed defendants
to inform themselves regarding the “dangers and disad‐
vantages of self‐representation.” Faretta, 422 U.S. at 835.
Faretta put that burden on the court, and by reversing that
burden, the Wisconsin Supreme Court’s decision was con‐
trary to Faretta.
B. Reason for Invoking Right to Self‐Representation
The state trial court also denied Imani his right to repre‐
sent himself because, it concluded, he was making a decision
without a “sufficiently rational basis,” driven by his momen‐
tary frustration with counsel at the suppression hearing. The
Wisconsin Supreme Court agreed that Imani had not made a
“deliberate” choice to represent himself. Imani, 786 N.W.2d at
51. But denying a defendant his Sixth Amendment right to
proceed pro se because his choice is foolish or rash is also con‐
trary to Faretta.
No. 14‐3407 9
Faretta recognized a defendant’s right to represent himself
even though it is “undeniable that in most criminal prosecu‐
tions defendants could better defend with counsel’s guidance
than by their own unskilled efforts.” 422 U.S. at 834. The Su‐
preme Court answered this concern by making clear that the
defendant himself is free to make this choice: “The right to
defend is personal. The defendant, and not his lawyer or the
State, will bear the personal consequences of a conviction. It
is the defendant, therefore, who must be free personally to de‐
cide whether in his particular case counsel is to his advantage.
And although he may conduct his own defense ultimately to
his own detriment, his choice must be honored out of ‘that
respect for the individual which is the lifeblood of the law.’”
Id., quoting Illinois v. Allen, 397 U.S. 337, 350–51 (1970) (Bren‐
nan, J., concurring).
Only in rare cases will a trial judge view a defendant’s
choice to represent himself as anything other than foolish or
rash. A judge does not violate a defendant’s Sixth Amendment
rights by explaining the risks to the defendant in detail and
then giving him time to think it over before the defendant (but
not the judge) makes the final decision. Wisconsin’s required
colloquy serves precisely this purpose. See State v. Klessig, 564
N.W.2d 716, 721 (Wis. 1997). But in the end a competent de‐
fendant has a constitutional right to represent himself even if
the judge thinks the defendant has no good reason to do so. It
is the trial judge’s job to make sure the defendant makes that
choice with open eyes. Nothing in Faretta or its progeny al‐
lows the judge to require the defendant to prove he is making
the choice for a reason the judge finds satisfactory. See Faretta,
422 U.S. at 834–35. The state courts denied Imani his Sixth
Amendment rights by preventing him from representing
himself on the ground that he did not persuade the trial judge
10 No. 14‐3407
that he had a good reason to do so. That reasoning was simply
contrary to Faretta.1
C. Competence
The Wisconsin Supreme Court’s holding that Imani was
not competent to represent himself at trial was also contrary
to Faretta. There was no relevant difference between Faretta’s
and Imani’s competence to represent themselves at trial.
Faretta had a high school education, was literate, and was able
to understand the trial judge’s warnings about what he was
getting himself into. Faretta, 422 U.S. at 807, 835. Imani had a
tenth‐grade education and asserted that he reads at a college
level. The transcript shows that Imani was able to express
himself well and to understand what the judge said to him.
The trial judge actually held Imani to a standard that re‐
quired him to have prior criminal trial experience. In denying
Imani’s invocation of his right, the trial judge said: “So while
1 After denying Imani’s invocation of his right, the trial judge said,
“Now, I’m willing to hear the motion again. It may at some point be per‐
mitted, but it is going to have to be in a context where I know the trial date
is not going to be jeopardized.” The state argues that Imani’s failure to act
on the trial court’s invitation to renew his motion indicates that his initial
decision was rash and hasty. The decision might have been rash, hasty, or
foolish as a matter of fact, but that makes no difference as a matter of law.
A court may not deny a defendant his right to represent himself because
the choice is rash, hasty, or foolish. In the end, the choice is the defend‐
ant’s, no matter how foolish it is. Faretta, 422 U.S. at 834. The trial judge’s
offer to consider a renewed motion in the future, and perhaps to grant it
“in a context where I know the trial date is not going to be jeopardized,”
did nothing to cure the judge’s error in denying the motion. A denial is a
denial, even with an offer to reconsider in certain circumstances. Nothing
in Faretta or its progeny indicates a trial court may require a defendant to
repeat his attempts to invoke his right of self‐representation.
No. 14‐3407 11
[Imani] has some observational experience with the criminal
court system, it hasn’t been presented to me that he has any
experience actually conducing proceedings like a criminal
court trial.”
Imani obviously did not have such experience, but the
court was applying the wrong legal standard, flatly contrary
to Faretta, where the Court explained: “We need make no as‐
sessment of how well or poorly Faretta had mastered the in‐
tricacies of the hearsay rule and the [state law] provisions that
govern challenges of potential jurors on voir dire. For his tech‐
nical legal knowledge, as such, was not relevant to an assess‐
ment of his knowing exercise of the right to defend himself.”
422 U.S. at 836.
The Wisconsin Supreme Court treated the issue of compe‐
tence as one of fact, see Imani, 786 N.W.2d at 53–54, but the
problem here was not factual but legal. By affirming the trial
court’s finding that Imani was not competent to represent
himself, the Wisconsin Supreme Court’s decision raised the
standard for competence so high that its decision was again
simply contrary to Faretta.
There is a narrow class of cases in which a defendant may
not be competent to represent himself at trial, but there is no
evidence of such circumstances here. The United States Su‐
preme Court has explained that a “right of self‐representation
at trial will not affirm the dignity of a defendant who lacks the
mental capacity to conduct his defense without the assistance
of counsel.” Indiana v. Edwards, 554 U.S. 164, 176 (2008) (inter‐
nal quotation marks omitted). A state may therefore deny de‐
fendants the right to represent themselves where they suffer
from “severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves.” Id. at
12 No. 14‐3407
178. There is no indication that Imani suffered from mental
illness or mental impairment. The record shows that Imani
was articulate and able to carry on reasoned conversations
with the judge. One cannot stretch Edwards to hold that it was
permissible to find Imani incompetent to represent himself.
It is also true that in Godinez v. Moran, 509 U.S. 389, 402
(1993), the Supreme Court wrote that states “are free to adopt
competency standards that are more elaborate” than the min‐
imum standard of competence required to choose to represent
oneself. But that flexibility does not authorize states to adopt
competence standards without limit. While the statement in
Godinez gave states some latitude in shaping their minimum
competence standards, Faretta and Edwards set the relevant
benchmarks. See Edwards, 554 U.S. at 173 (“Godinez involved
a State that sought to permit a gray‐area defendant to repre‐
sent himself. But that holding simply does not tell a state
whether it may deny a gray‐area defendant the right to repre‐
sent himself—the matter at issue here.”) (emphases in origi‐
nal). Because Imani’s abilities were close enough to Faretta’s
to be indistinguishable, the Wisconsin courts unreasonably
applied Faretta in denying Imani his right to represent him‐
self.2
Finally, the Wisconsin Supreme Court’s conclusion that the
trial court did not err by taking “into consideration the trial
schedule when determining whether Imani was competent to
proceed pro se” was also contrary to Faretta. See Imani, 786
2 The standard of competence applied by the Wisconsin courts here
was much more demanding, and the conflict with Faretta much clearer,
than in Brooks v. McCaughtry, 380 F.3d 1009, 1011 (7th Cir. 2004), where we
affirmed denial of self‐representation to a defendant who had exhibited
“wild behavior and incomprehensible outbursts during the trial.”
No. 14‐3407 13
N.W.2d at 54. Where a defendant invokes his right so late as
to delay a trial or engages in “serious and obstructionist mis‐
conduct,” a judge may deny the exercise of the right of self‐
representation. Faretta, 422 U.S. at 834–35 & n.46. But a late
request would have no bearing on competence. Under Faretta,
legal skill and experience are not required to be competent to
represent oneself. Id. at 835. And in any case, Imani made his
request four weeks before trial and said he would not need
any extra time to prepare. Faretta held it was a constitutional
error to deny request made “weeks before trial.” Id. The judge
would have been entitled to hold Imani to that assurance if he
had later asked for a delay, but he could not deny Imani his
Sixth Amendment right to represent himself on this basis.
Imani’s conviction cannot stand because the Wisconsin
state courts’ denial of his Sixth Amendment right to represent
himself was contrary to and an unreasonable application of
binding Supreme Court precedent. The denial of that right is
not subject to harmless error analysis. McKaskle v. Wiggins, 465
U.S. 168, 177 n.8 (1984). The district court’s judgment is
REVERSED and the case is REMANDED with instructions to
grant the writ of habeas corpus ordering that Imani be either
released or retried promptly.