In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3253
RODNEY WASHINGTON,
Petitioner‐Appellant,
v.
GARY A. BOUGHTON, Warden,
Wisconsin Secure Program
Facility,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin
No. 3:14‐cv‐00208‐wmc — William M. Conley, Judge.
____________________
ARGUED JANUARY 10, 2018 — DECIDED MARCH 8, 2018
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
BUCKLO, District Judge.*
BUCKLO, District Judge. A Wisconsin jury convicted Rod‐
ney Washington of multiple counts of first‐degree sexual as‐
sault with the use of a dangerous weapon and other crimes.
Washington appealed his conviction, arguing that the crimi‐
* Of the Northern District of Illinois, sitting by designation.
2 No. 16‐3253
nal complaint that triggered his prosecution was legally in‐
sufficient under Wisconsin law; that his trial attorney was
ineffective for failing to seek dismissal of the complaint on
that ground; and that the trial court deprived him of his con‐
stitutional right to self‐representation. After exhausting
these claims in state court, Washington sought federal habe‐
as corpus relief. The district court denied his petition.
For the reasons explained below, we conclude that nei‐
ther Washington’s due process challenge to the state appel‐
late courts’ treatment of his claim based on the sufficiency of
his charging documents nor his ineffective assistance of
counsel claim entitles him to habeas relief. We are con‐
vinced, however, that the state courts’ denial of his request
to proceed pro se cannot be squared with Faretta v. California,
422 U.S. 806 (1975). Accordingly, we reverse.
I.
On March 16, 2000, the State of Wisconsin filed a “John
Doe” criminal complaint charging an unknown individual
with sexually assaulting five women between March 27,
1994 and January 14, 1995. Although the defendant’s identity
was unknown, the Wisconsin State Crime Laboratory had
obtained evidence of his genetic code from semen samples
taken from the victims’ bodies and clothing. By comparing
the DNA profiles developed from those samples, the State
Crime Lab determined that the same individual was respon‐
sible for all five of the assaults. Indeed, the criminal com‐
plaint stated that the DNA profiles developed from the five
semen samples “match[ed]” at all of the genetic locations for
which DNA profiles had been developed. Accordingly, the
complaint identified the defendant with reference to those
genetic locations, describing him as “Doe, John #5, Unknown
No. 16‐3253 3
Male with Matching Deoxyribonucleic Acid (DNA) Profile at
Genetic Locations D1S7, D2S44, D4S139, D5S110, D10S28,
and D17S79.” An arrest warrant describing John Doe #5 in
the same manner was issued the same day.
On June 25, 2007, a databank unit leader at the State
Crime Lab matched Washington’s DNA to the DNA from
the semen obtained from the five sexual assault victims.
Shortly thereafter, the state amended its complaint, naming
Washington as the defendant and describing his specific
DNA profile as a series of numbers (known as “alleles”) at
several genetic locations.1
Washington was appointed counsel. During pre‐trial
proceedings, Washington expressed dissatisfaction with his
counsel’s performance and told the court that he wanted to
represent himself. Four months before trial, he filed a writ‐
ten submission stating that unless his lawyer moved to dis‐
miss the case prior to a hearing scheduled for February 14,
2008, he would seek to proceed pro se. True to his word,
Washington told the court at that hearing, “I just want to go
pro se in this case and defend myself.” Although he with‐
drew his request the same day after conferring with his
counsel, he revived it on the morning of April 28, 2008—the
1 Illustrating the difference, the amended complaint describes the de‐
fendant as “Rodney Washington, DOB 3/31/58; Formerly Known as Doe,
John #5, Unknown Male with matching Deoxyribonucleic Acid (DNA)
Profile at Genetic Locations D127, D2S44, D4S139, D5S110, D10S28, and
D17S79 and Further Identified with Matching DNA profile at Genetic
Locations D3S1358(16), vWA(15,16), FGA(19, 26), D8S1179(14),
D21S11(28), D18S51(15, 20), D5S818(8,13), D13S317(12, 13), D7S820 (10,
11), D16S539 (12, 13), THO1(6, 9, 3), TPOX (8, 10), AND CSF1PO(12).”
4 No. 16‐3253
day his trial was scheduled to begin—insisting, “I’m going
pro se in this case, Your Honor.”
The court confirmed that Washington wished to repre‐
sent himself, prompting the following colloquy:
The Court: Okay. But you understand that by doing
so you would have to comply with any
and all the rules of the court and rules of
evidence and case law, do you under‐
stand that?
Defendant: I have no problem with that.
The Court: Well, do you know the rules of evi‐
dence, sir?
Defendant: Do I what?
The Court: Know the rules of evidence?
Defendant: When they are brought to my attention,
I will know.
The Court: So that would certainly help to have a
lawyer help you do that.
Defendant: It won’t be this one.
The Court: Well, here is the problem with proceed‐
ing pro [se] like you want to, and you
have a right to do that unless the court
doesn’t feel that you’re competent to do
that and the court doesn’t believe that
you’re competent to do that and I’ll tell
you why, because of the DNA. The
DNA that’s involved in this case which
is scientific and very few people outside
No. 16‐3253 5
the legal profession and scientists know
how that works. And in order to devel‐
op and cross‐examine those witnesses,
you have to have some knowledge in
doing that. Even if you knew some of
the rules of evidence and were capable
in other ways in order to represent
yourself, that’s a big issue. And it be‐
comes problematic, also problematic al‐
so since this is a sexual assault case for
you to quite frankly cross‐examine the
witnesses.
Defendant: I have a right to face my accusers.
The judge denied Washington’s request, and the case
proceeded to trial with Washington represented by a lawyer
he didn’t want. He was convicted and sentenced to 100 years
in prison.
Washington’s first appellate lawyer filed a “no‐merit”
appeal, to which Washington filed a pro se response. The
Court of Appeals of Wisconsin asked Washington’s lawyer
to respond to several of the issues Washington raised, in‐
cluding “whether the arrest warrant or complaint identified
Washington sufficiently to toll the statute of limitations,”
and “whether the trial court erred by denying Washington’s
request to proceed without counsel.” Rather than proceed
with these issues on appeal, Washington moved, through
new counsel, to dismiss the appeal and present his claims in
a post‐conviction motion.
Washington’s post‐conviction motion asserted that his
trial counsel was ineffective for failing to seek dismissal of
6 No. 16‐3253
the proceedings for lack of jurisdiction. He argued that be‐
cause the DNA information in the John Doe complaint and
arrest warrant did not identify him with reasonable certain‐
ty, it did not toll the statute of limitations, rendering the
amended complaint untimely. The court denied the post‐
conviction motion after an evidentiary hearing that included
extensive DNA testimony.
In a consolidated appeal, Washington challenged the trial
court’s denial of his request to represent himself and the
post‐trial court’s rejection of his related claims alleging in‐
sufficiency of the complaint and arrest warrant and ineffec‐
tive assistance of counsel. The Wisconsin Court of Appeals
affirmed the post‐trial decision on the ground that the John
Doe complaint and arrest warrant satisfied the requirements
of Wisconsin law under State v. Dabney, 663 N.W.2d 366
(Wis. Ct. App. 2003), and State v. Davis, 698 N.W.2d 823
(Wis. Ct. App. 2005). State v. Washington, 2013 WI App 55
(Wis. App. 2013) (unpublished). Because Washington’s chal‐
lenge to the charging documents lacked merit, the court ex‐
plained, his lawyer was not ineffective for failing to pursue
it.
The state appellate court went on to affirm the denial of
Washington’s request to represent himself. It agreed that
Washington was not competent to proceed pro se, adding its
own reasons to support the trial court’s conclusion. Like the
trial court, the appellate court believed Washington unable
to defend against the state’s DNA evidence, reasoning that
Washington’s “irrational and disruptive” pre‐trial conduct
reflected his inability to understand and focus on a critical
part of the case. The appellate court further noted that Wash‐
ington’s desire to represent himself was grounded in a belief
No. 16‐3253 7
that his attorney was complicit with the prosecutor and the
trial court in “fabricating” his arrest warrants, and that his
“obsession with a conspiracy theory led to frequent disrup‐
tions in the courtroom.”
After exhausting his state court remedies, Washington
turned to federal court seeking a writ of habeas corpus un‐
der 28 U.S.C. § 2254. The district court denied his request. It
first concluded that any constitutional claim potentially en‐
compassed in Washington’s challenge to the John Doe crim‐
inal complaint and arrest warrant was procedurally default‐
ed because Washington failed to present it as such in the
state proceedings. The court acknowledged that a state in‐
dictment alleged to be “so defective that the convicting court
had no jurisdiction” could implicate constitutional concerns
cognizable on habeas review. But because Washington ex‐
plicitly rested his claim solely on state law grounds, it fell
outside the scope of the court’s authority to grant relief.
The district court also rejected Washington’s ineffective
assistance of counsel claim, agreeing with the state appellate
court that the claim Washington faulted his attorney for
omitting was “doomed by preexisting authority.” Finally,
the district court rejected Washington’s Faretta claim. It con‐
cluded that the record supported the Wisconsin appellate
court’s determination that Washington was incompetent to
represent himself, pointing to his “irrational arguments” and
“disrespectful, disruptive behavior during the proceedings.”
2016 WL 4382770, at *7.
We granted a certificate of appealability to review each of
the foregoing claims.
8 No. 16‐3253
II.
Washington’s lead argument is that the Wisconsin Court
of Appeals violated the Due Process Clause when it held
that the John Doe complaint and arrest warrant were suffi‐
cient, under Wisconsin law, to satisfy the requirements of
personal jurisdiction and toll the statute of limitations. His
constitutional theory is that the court reached its conclusion
by applying Wisconsin law in a manner “unexpected and
indefensible by reference to preexisting law.” In Washing‐
ton’s view, the state appellate court’s decision violates Bouie
v. City of Columbia, 378 U.S. 347 (1964), which prohibits the
retroactive application of an unforeseeable state‐court con‐
struction of state law.
The State offers a cascade of arguments for rejecting this
claim without reaching its merits: first, that Washington pro‐
cedurally defaulted the claim by failing to raise it in the state
proceedings, and that his procedural default is not excused
by the alleged ineffectiveness of his counsel; second, that if,
as Washington now contends, his due process claim did not
accrue until the Wisconsin Court of Appeals issued its deci‐
sion, then it is unripe for federal habeas review because he
has not exhausted his state court remedies2; and third, that
2 Actually, the State does not assert failure to exhaust as an inde‐
pendent basis for denying Washington’s petition, but it raises the issue
in response to Washington’s alternative argument that if his due process
claim is procedurally defaulted, the default is excused by his counsel’s
failure to raise it in state court. The State’s submissions do not address
whether state remedies remain available for Washington to pursue his
due process claim in state court. If they do, failure to exhaust is the more
appropriate objection to Washington’s due process claim; if not, it is pro‐
cedural default. See Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
Because we deny Washington’s due process claim on the merits, howev‐
No. 16‐3253 9
Washington forfeited his due process claim by failing to
raise it in his pro se habeas petition to the district court. Ra‐
ther than work our way through the maze of these proce‐
dural arguments, however, we think it best to cut to the
chase and deny Washington’s due process claim on the mer‐
its.
We pause here to confirm that this approach is consistent
with the interests of comity, finality, federalism, and judicial
efficiency that are at the heart of both the exhaustion re‐
quirement and the procedural default doctrine. See Davila v.
Davis, 582 U.S. ‐‐‐‐, 137 S. Ct. 2058, 2064 (2017); Perruquet v.
Briley, 390 F.3d 505, 513–15 (7th Cir. 2004). Indeed, while the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) codifies these principles by narrowly circum‐
scribing a federal court’s authority to grant habeas relief to a
prisoner in state custody, it expressly authorizes a federal
court to deny an unexhausted claim on the merits. 28 U.S.C.
§ 2254(b)(2). Similarly, procedural default is an affirmative
defense that does not restrict our jurisdiction, Trest v. Cain,
522 U.S. 87, 89 (1997); Lewis v. Sternes, 390 F.3d 1019, 1029
(7th Cir. 2004), and our election to forgo a procedural default
inquiry to uphold the state court’s judgment on the merits
accords at least the same finality and respect for that judg‐
ment and for our system of federalism as declining to reach
the merits at all. Finally, there is no dispute that we have
discretion to overlook any forfeiture of Washington’s due
process claim based on his failure to raise it in the district
court. See United States v. Bailey, 777 F.3d 904, 908 (7th Cir.
2015).
er, we need not decide which procedural objection, if any, better suits
Washington’s claim.
10 No. 16‐3253
These considerations, coupled with the purely legal na‐
ture of Washington’s due process claim, counsel in favor of
its swift disposition on the merits. Indeed, given that our ul‐
timate disposition of Washington’s petition is likely to result
in further proceedings in state court, leaving unresolved the
merits of a claim that requires no additional factual devel‐
opment, and that has been fully briefed and ably argued in
this court, will almost certainly engender needless reduplica‐
tion of the proceedings.
This brings us to the substance of Washington’s due pro‐
cess claim. Washington’s theory is that the Wisconsin Court
of Appeals exceeded Bouie’s “limitations on ex post facto judi‐
cial decisionmaking” when it held that the John Doe crimi‐
nal complaint and arrest warrant were sufficient under Dab‐
ney and Davis. Rogers v. Tennessee, 532 U.S. 451, 456 (2001). In
Washington’s view, the state appellate court’s application of
Dabney and Davis departed so radically and unexpectedly
from Wisconsin law as it had previously been expressed that
it violated due process. The effect of the court’s “unexpected
and indefensible” decision, Washington argues, was to ret‐
roactively revive an expired statute of limitations. We re‐
view this claim de novo. See Cone v. Bell, 556 U.S. 449, 472
(2009) (federal court reviews de novo habeas claims the state
courts did not reach on the merits); Freeman v. Pierce, 878
F.3d 580, 586 (7th Cir. 2017) (argument first raised in federal
habeas proceedings is “due no AEDPA deference”); Perru‐
quet, 390 F.3d at 518 (where “there is no state‐court decision
we can look to for an evaluation” of the claim, federal habeas
court’s review is de novo).
For well over a century, Wisconsin law has authorized
the prosecution of a defendant whose name is unknown,
No. 16‐3253 11
provided the “best description of the person” is given in the
complaint and warrant. Scheer v. Keown, 29 Wis. 586, 588
(Wis. 1872). Wisconsin has refined this principle in the statu‐
tory requirement that a warrant “designate the person to be
arrested by any description by which the person to be ar‐
rested can be identified with reasonable certainty.” WIS.
STAT. § 968.04(3)(a)4. Additionally, the complaint must set
forth “a written statement of the essential facts constituting
the offense charged, WIS. STAT. § 968.01(2), and must indi‐
cate who is being charged, with what offense, and why. See
State ex rel. Evanow v. Seraphim, 161 N.W. 2d 369, 372 (Wis.
1968).
In State v. Dabney, the Wisconsin Court of Appeals ap‐
plied these principles to determine the adequacy, for juris‐
dictional and limitations purposes, of a criminal complaint
and warrant issued against a suspect known only by his
DNA. 663 N.W. 2d 366, 370‐71 (Wis. Ct. App. 2003). Observ‐
ing that “a DNA profile is arguably the most discrete, exclu‐
sive means of personal identification possible,” the court
held that a complaint and warrant that set forth “a specific
DNA profile” were adequate under Wisconsin law. Id. at
372. In State v. Davis, the court reaffirmed that “the State is
permitted to file a complaint, which identifies the defendant
only by his DNA profile.” 698 N.W. 2d 823, 831 (Wis. Ct.
App. 2005). On the authority of these cases, the state appel‐
late court held that the John Doe complaint and warrant is‐
sued against Washington were sufficient to confer jurisdic‐
tion, so the proceedings against him were timely filed.
Washington does not claim that Dabney and Davis them‐
selves represent a departure from Wisconsin’s longstanding
rule that the state must provide “the best description” of the
12 No. 16‐3253
defendant. He insists, however, that in 1994 and 1995, when
the crimes he was charged with were committed, he could
not reasonably have anticipated that a complaint and war‐
rant containing only the identifying information set forth in
the John Doe complaint and warrant would be deemed to
satisfy that standard. He argues that unlike the instruments
in Dabney and Davis, “not only did the John Doe complaint
and warrant not give the best description of the defendant
available, they gave no description at all.” But this character‐
ization is not consistent with the record.
Washington homes in on the state appellate court’s ob‐
servations that “John Doe #5’s actual DNA profile was not
included anywhere in the complaint,” and that “the com‐
plaint and arrest warrant did not include a DNA profile, but
rather, only included the locations of six DNA markers that
are common to all human beings.” But these statements
must be viewed in context. The court went on to explain that
the narrative portion of the complaint described in detail the
forensic analysis performed on semen samples recovered
from the five sexual assault victims and determined that the
same individual had committed the crimes. Specifically, the
complaint explained that the Wisconsin State Crime Lab de‐
veloped DNA profiles for several genetic locations from each
semen sample and determined that the DNA profiles
“matched” one another at each of the locations. It further
stated that the probability of randomly selecting an unrelat‐
ed individual whose DNA profile matches the DNA profiles
developed from the semen samples was, at most, one in 130
billion. Based on this information, the state filed a complaint
against John Doe #5, whose identity was unknown, but
whose DNA profile at the specified locations was known to
No. 16‐3253 13
“match” the corresponding DNA profiles recovered from
the sexual assault victims.
Washington’s suggestion that the complaint and warrant
do no more than describe the defendant as having unspeci‐
fied genetic material at each of six universally common ge‐
netic locations overlooks the narrative portion of the com‐
plaint entirely. It also ignores the meaning of the word
“matching” in both the complaint and the warrant. When
the instruments are read together and in their entirety, the
word “matching” means that the specific genetic markers at
the identified locations on John Doe #5’s genetic code are the
same as the genetic markers found at those same locations
on the genetic code of the assailant, as determined based on
an analysis of his semen.
It is true that the complaint and warrant did not describe
the genetic markers using numbers to represent the discrete
“allele systems” observed at the identified genetic locations,
as the amended complaint would later do. Indeed, as the
DNA expert who testified at the hearing on Washington’s
post‐conviction motion explained, the DNA technology in
use at the time the John Doe complaint and warrant were
issued “just was not advanced enough” to do so. Neverthe‐
less, the Wisconsin State Crime Lab was able, using the
technology available at the time, to determine that John Doe
#5’s genetic information “matched” the genetic information
developed from the semen samples taken from the five sex‐
ual assault victims. Accordingly, the complaint and warrant
identified the defendant “with particularity and specificity”
by describing John Doe’s DNA profile as “matching” DNA
profiles they developed using the method then in use.
14 No. 16‐3253
That is indeed how the Wisconsin Court of Appeals un‐
derstood the use of the word “match[ing]” in the 2000 com‐
plaint and warrant. The court further understood that this
description applied to fewer than one in 130 billion unrelat‐
ed individuals. Accordingly, the court’s observation that the
complaint did not include the defendant’s individual DNA
profile is best understood as an acknowledgment that the
complaint did not refer to the defendant’s genetic infor‐
mation in terms of “alleles,” as the amended complaint later
did based on the more advanced DNA technology in use at
the time. But nothing in Washington’s argument persuades
us that when the term “matching” is properly understood
and the complaint is read as a whole, the description of John
Doe #5 in the 2000 charging instruments as having a “match‐
ing” DNA profile at the specified genetic locations was not
in fact the “best description” available.
To be sure, an individual presented with the John Doe
complaint and warrant issued in this case would have no
immediate way of knowing whether he was the individual
charged. That is, he could not know, without additional in‐
quiry, whether his DNA profile “matches” the DNA profile
the State Crime Lab developed based on semen collected
from the victims. But we think it highly unlikely that an in‐
dividual presented with documents identifying the person
charged by the alleles observed at specific locations on his
genetic code would have any better idea, without further in‐
vestigation, whether the defendant was himself. Yet, Dabney
and Davis confirmed that that information was sufficient to
provide “the best description available” as required by Wis‐
consin law. Washington does not suggest that due process
requires more.
No. 16‐3253 15
Because we see little practical distinction between the
identifying information set forth in the John Doe charging
instruments in this case and the ones examined in Dabney
and Davis, we discern no constitutional error in the state ap‐
pellate court’s conclusion that those cases were dispositive.
The state court’s extension of those cases to the materially
similar facts here was not an “unexpected and indefensible”
departure from established Wisconsin law, but rather within
the permissible scope of “incremental and reasoned devel‐
opment of precedent that is the foundation of the common
law system.” Rogers v. Tennessee, 532 U.S. 451, 461 (2001). Ac‐
cordingly, there was no due process violation under Bouie.
III.
Our analysis of Washington’s ineffective assistance of
counsel claim may be brief. Washington’s theory is that his
state‐appointed lawyer performed deficiently by failing to
move for dismissal of the proceedings on the ground that the
trial court lacked personal jurisdiction over him. The Wis‐
consin Court of Appeals resolved this claim on the merits
under Strickland v. Washington, 466 U.S. 668 (1984). Accord‐
ingly, our review is “doubly deferential.” Hinesley v. Knight,
837 F.3d 721, 732 (7th Cir. 2016) (Strickland inquiry is “highly
deferential” to counsel’s plausible strategic choices, and fed‐
eral habeas review under § 2254(d) is “highly deferential” to
state court’s decision).
The state appellate court rejected Washington’s ineffec‐
tive assistance of counsel claim on the ground that Dabney
and Davis foreclosed the argument he faulted his lawyer for
failing to assert. Because that conclusion rests on an interpre‐
tation of state law, it is iron‐clad on habeas review. Estelle v.
McGuire, 502 U.S. 62, 67‐68 (1991) (“it is not the province of a
16 No. 16‐3253
federal habeas court to reexamine state‐court determinations
on state‐law questions.”); Ben‐Yisrayl v. Buss, 540 F.3d 542,
555 (7th Cir. 2008) (“[w]e are bound by a state court’s inter‐
pretations of state law.”). As the state court correctly ob‐
served, an attorney is not ineffective for failing to raise a
meritless argument. See Stone v. Farley, 86 F.3d 712, 717 (7th
Cir. 1996). Accordingly, the error Washington attributes to
his lawyer does not entitle him to habeas relief.
IV.
Washington’s final claim is that the trial court’s refusal to
allow him to represent himself violated Faretta v. California,
422 U.S. 806 (1975). We agree and hold that the state appel‐
late court’s conclusion to the contrary unreasonably applied
the Supreme Court’s decision in that case.
The record suggests three reasons for the trial court’s de‐
termination that Washington was not competent to represent
himself: first, that he was unfamiliar with the rules of evi‐
dence; second, that he was ill‐equipped to deal with the
state’s DNA evidence; and third, that it would be “problem‐
atic” for him to cross‐examine the state’s witnesses. Without
commenting on the first or third of these reasons, the state
appellate court endorsed the second, reasoning that Wash‐
ington’s “irrational and disruptive” behavior leading up to
trial evidenced an inability “to understand and decipher”
the state’s DNA evidence. The appellate court further con‐
cluded that Washington’s “inability to recognize and follow
courtroom decorum or to identify and argue legitimate legal
issues in his own defense” supported the lower court’s de‐
termination that Washington “would not be able to properly
focus on and understand the complicated DNA evidence
that was critical to the State’s case.”
No. 16‐3253 17
A preliminary scan of the authorities the appellate court
relied upon for its analysis does not bode well for its conclu‐
sion. With no mention of Faretta or the line of Supreme
Court precedent it engendered on the subject of self‐
representation, the Wisconsin Court of Appeals relied al‐
most exclusively on State v. Klessig, 564 N.W. 2d 716 (Wis.
1997), which state courts have interpreted as authorizing a
heightened competency standard whose application we
have criticized in several recent decisions, see Tatum v. Foster,
847 F.3d 459, 467 (7th Cir. 2017); Imani v. Pollard, 826 F.3d 939
(7th Cir. 2016), and on State v. Imani, 786 N.W.2d 40 (Wis.
2010), a decision that we later held was contrary to and un‐
reasonably applied Faretta.
Undoubtedly perceiving the precarious footing on which
the state court’s decision rests, the State defends it on the
ground that no Supreme Court has clearly established
“whether, or under what circumstances, a trial court could
deny a demand for self‐representation.” So, the State rea‐
sons, the Wisconsin appellate court’s decision cannot have
violated any “clearly established” federal law. But as the
State concedes, this argument cannot be squared with our
decisions in Imani and Tatum, both of which similarly in‐
volved Wisconsin state prisoners denied the right to self‐
representation on grounds including their putative lack of
competence. In both cases, we held that the Wisconsin courts
violated the clearly established rule of Faretta that a court
may not force a lawyer upon a defendant based on his per‐
ceived lack of education, experience or legal knowhow.
As we explained in Tatum, Faretta stands for the basic
principle that a state may not constitutionally “hale a person
into its criminal courts and there force a lawyer upon him,
18 No. 16‐3253
even when he insists that he wants to conduct his own de‐
fense.” 847 F.3d 459, 464 (quoting Faretta, 422 U.S. at 807).
While a defendant seeking to waive his Sixth Amendment
right to counsel must do so “knowingly and intelligently,”
and so must be mentally competent to make that decision,
the Court made clear that the defendant’s “technical legal
knowledge” is irrelevant to the court’s assessment of his
competency. Id. at 835, 36. The Court’s subsequent decisions
involving self‐representation confirm that the focus of the
inquiry is on the defendant’s mental competency, or as the
Court sometimes calls it, his “mental functioning.” Godinez v.
Moran, 509 U.S. 389, 404 (1993).
In Godinez, the Court held that the competency standard
for pleading guilty or waiving the right to counsel is no
higher than the basic competency standard for standing trial.
Emphasizing that “the competence that is required of a de‐
fendant seeking to waive his right to counsel is the compe‐
tence to waive the right, not the competence to represent him‐
self,” id. at 399 (original emphasis), the Court reaffirmed
Faretta’s holding that a defendant’s “ability to represent
himself has no bearing upon his competence to choose self‐
representation.” Id. at 400 (original emphasis). Accordingly,
the Court explained, so long as a defendant competent to
stand trial effectuates a “knowing and voluntary” waiver of
his right to counsel, no further inquiry into his ability to rep‐
resent himself was required. Id. at 400‐01.
It is true that Godinez does not prohibit states from addi‐
tional inquiry, as the Court acknowledged in Indiana v. Ed‐
wards, 554 U.S. 164 (2008). In Edwards, the Court acknowl‐
edged a category of “gray area” defendants who are compe‐
tent to stand trial, but whose mental illness or disability ren‐
No. 16‐3253 19
ders them incompetent to conduct trial proceedings without
the assistance of counsel. Id. at 172. The Court concluded
that states may insist upon trial counsel for gray‐area de‐
fendants. Id. at 174‐176.
Edwards did not, however, “introduce[] the possibility of
taking into account the defendant’s legal knowledge,” as the
Court’s emphasis remained on the defendant’s mental com‐
petence. Tatum, 847 F.3d at 465. Indeed, Edwards involved a
defendant suffering from a well‐documented, “severe men‐
tal illness” that at times caused “delusions and marked diffi‐
culties in thinking” and was manifest in his incomprehensi‐
ble pro se submissions to the court. Id. at 168, 178, 179
(App’x). The Court reasoned that allowing a defendant who
was fit to stand trial but who nevertheless lacked the mental
capacity to “carry out the basic tasks needed to present his
own defense without the help of counsel” would call into
question the fundamental fairness of proceedings in which
he was unrepresented. Edwards, 554 U.S. at 177‐78.
In Imani, Tatum, and a third case, Jordan v. Hepp, 831 F.3d
837 (7th Cir. 2016), we synthesized the principles emerging
from Faretta, Godinez, and Edwards as they bear on the Wis‐
consin courts’ application of Klessig. For example, we ob‐
served in Imani that while the Godinez Court held that states
“are free to adopt competence standards that are more elab‐
orate,” 826 F.3d at 946 (quoting Godinez, 509 U.S. at 402), this
flexibility is not without limits, and that Faretta and Edwards
“set the relevant benchmarks.” Id. at 947. We also acknowl‐
edged that Edwards authorizes states to impose a higher
competency standard on “gray‐area” defendants suffering
from mental illness or disability, but we declined to “stretch
Edwards” by applying the gray‐area standard to Imani, who
20 No. 16‐3253
“had a high school education, was literate, and was able to
understand the trial judge’s warnings about what he was
getting himself into,” when the record revealed no evidence
of any mental illness or disability. Id. at 943, 946. Because
from all that appeared, Imani’s abilities were materially in‐
distinguishable from Faretta’s, we held that the Wisconsin
Supreme Court’s decision was contrary to, and an unreason‐
able application of Faretta. Id. at 947.
Similarly in Tatum, we concluded that the Wisconsin Su‐
preme Court’s application Klessig was contrary to, and an
unreasonable application of, Faretta and its progeny. 847
F.3d at 469. As in Imani, nothing in the record “suggest[ed]
that Tatum suffered from deficient mental functioning, as
opposed to a limited education.” Id. at 467. Accordingly, we
concluded that the Wisconsin Supreme Court had “strayed
from the ‘mental functioning’ sense of competence over to
educational achievement and familiarity with the criminal
justice system.” Id. To illustrate the distinction, we contrast‐
ed Tatum’s circumstances with those at issue in Jordan.
Jordan involved a defendant who was functionally illit‐
erate. The trial court initially allowed Jordan to proceed pro
se, reasoning that his limited literacy “should not prevent
him from representing himself.” 831 F.3d at 842. The court
reversed course, however, after it became clear that police
reports and other written documents would be used at trial.
Id. The court asked Jordan to read some of the documents
aloud, which he did “with dismal results,” then confirmed
that he only “somewhat” understood them. Id. at 846. The
court concluded that Jordan’s limited literacy prevented him
from presenting a meaningful defense on his own and in‐
sisted that he be represented at trial. Id. We disagreed with
No. 16‐3253 21
the court’s decision, seeing “no hint that the Supreme Court
was talking about this vast population [of adults with no or
limited literacy] in Edwards.” Id. at 845. But because AEDPA
“does not permit us to apply our own independent assess‐
ment” of the case, we felt compelled to deny relief, conclud‐
ing that the state courts did not unreasonably consider Jor‐
dan’s illiteracy to fall within the scope of “mental disability”
the Court recognized as deserving special consideration. Id.
But the State does not argue that Washington’s mental
capacities fall on Jordan’s side of the competency line, rather
than on Imani’s and Tatum’s. Indeed, the State does not
suggest that Washington suffers from any mental illness or
disability, or that the state courts’ denial of his right to self‐
representation rested on the belief that he did. Rather than
seek to distinguish Imani and Tatum on these or any other
facts, the State urges us to view those cases as “wrongly de‐
cided,” reiterating its theory that there is no “clearly estab‐
lished” Supreme Court rule on point. But we remain con‐
vinced that those decisions—which have withstood a motion
for rehearing en banc (denied in Imani) and a petition for a
writ of certiorari (denied in Tatum, Foster v. Tatum, 138 S. Ct.
355 (Oct. 16, 2017))—arrive at the outcome mandated by the
clear rules established in Faretta and its progeny.
The State’s final argument is that the state appellate
court’s decision should be upheld because Washington’s
“obstructionist conduct” warranted the trial court’s decision.
In dueling letters filed pursuant to Fed. R. App. P. 28(j), the
parties dispute the standard of review that applies to this
argument in the wake of our decision in Freeman v. Pierce,
878 F.3d 580 (7th Cir. 2017), issued after the close of briefing
in this case. In Freeman, we granted an Illinois state prison‐
22 No. 16‐3253
er’s habeas petition after concluding that the state courts’
denial of his right to represent himself based on his limited
education and legal abilities was contrary to Faretta. Id. at
586. We also rejected the respondent’s argument—raised for
the first time in its federal appellate brief—that the defend‐
ant had acquiesced to representation by counsel and waived
his right to represent himself. Id. at 589–90. We observed that
“[w]hether a defendant waived his right to self‐
representation through acquiescence is a question of fact,”
and that the Illinois Appellate Court did not make such a
factual finding. Accordingly, we reviewed the issue of ac‐
quiescence/waiver de novo. Id. at 590.
Washington argues that because the Wisconsin Court of
Appeals did not rely on his putative “obstructionist miscon‐
duct” to support the denial of his right to self‐representation,
we consider the State’s argument with no deference to the
state appellate court’s decision. The State disputes the prem‐
ise of Washington’s argument, observing that the Wisconsin
Court of Appeals cited Washington’s disruptive conduct as
among the factors supporting the trial court’s denial of his
right to represent himself, although it viewed the issue
through the lens of competency. Indeed, after characterizing
Washington’s behavior as “irrational and disruptive,” the
Wisconsin Court of Appeals considered Washington’s “fre‐
quent disruptions in the courtroom, during which Washing‐
ton interrupted and stalled proceedings, and in some in‐
stances refused to participate in proceedings or even physi‐
cally come to court.”
It is true that the state appellate court did not frame
Washington’s disruptive conduct as an independent reason
supporting the trial court’s insistence upon counsel, but in‐
No. 16‐3253 23
stead viewed his conduct as supporting the court’s compe‐
tency determination. But we agree with the State that this
distinction makes no difference in the AEDPA context,
where “we review judgments, not opinions.” Rhodes v.
Dittmann, 783 F.3d 669, 675 (7th Cir. 2015). The hair‐splitting
Washington proposes finds no support in Freeman, where
the respondent’s newly minted argument rested on facts not
determined by the state courts and presented a legal theory
distinct from any the state courts had addressed.
What troubles us about the Wisconsin appellate court’s
conclusion that Washington’s conduct justified the denial of
his right to represent himself is another matter: The bulk of
the conduct the court points to as “irrational and disruptive”
(and nearly all of the conduct the State details in its brief) oc‐
curred after the trial court rejected Washington’s request to
proceed pro se and concerned his insistence that the court,
the State, and his attorney were conspiring against him. As
the Court observed in Faretta, “[t]o force a lawyer on a de‐
fendant can only lead him to believe that the law contrives
against him.” 422 U.S. at 834. Washington’s conspiracy theo‐
ry is almost certainly without substance—and his singular
focus on it misguided—but it is not irrational. See id. The tri‐
al court would have been on solid constitutional ground had
it allowed Washington to waive his right to counsel, then
terminated his self‐representation if it became clear that
Washington was mentally unfit to conduct trial proceedings
or that he sought to “use the courtroom for deliberate dis‐
ruption” of his trial. Id. at 834 n. 46. What it could not do,
consistently with Faretta, Godinez, and Edwards, was find him
incompetent to waive his right to counsel and proceed to tri‐
al pro se based on its belief that he lacked the specialized
knowledge required to confront the State’s DNA evidence.
24 No. 16‐3253
Nor could the Wisconsin Court of Appeals rehabilitate the
trial court’s constitutionally infirm decision by pointing to
conduct that occurred after the decision was made. We con‐
clude that the denial of Washington’s right to represent him‐
self was contrary to and an unreasonable application of Su‐
preme Court precedent. That constitutional violation is not
subject to harmless error analysis. Imani, 826 F.3d at 947.
The judgment of the district court is REVERSED and the
case is REMANDED with instructions to grant the writ of ha‐
beas corpus, unless the State within 90 days of issuance of
this court’s mandate initiates steps to retry Washington.