In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1727
SCOTT E. SCHMIDT,
Petitioner‐Appellant,
v.
BRIAN FOSTER, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:13‐CV‐01150‐CNC — Charles N. Clevert, Jr., Judge.
____________________
ARGUED SEPTEMBER 6, 2018 — DECIDED DECEMBER 20, 2018
____________________
Before WOOD, Chief Judge, and FLAUM, EASTERBROOK,
KANNE, ROVNER, SYKES, HAMILTON, BARRETT, SCUDDER, and
ST. EVE, Circuit Judges.*
ST. EVE, Circuit Judge. Scott Schmidt shot and killed his es‐
tranged wife. He confessed at the scene, but come trial he
sought to mitigate his crime with the second‐degree defense
* Circuit Judge Brennan did not participate in the consideration or de‐
cision of this case.
2 No. 17‐1727
of adequate provocation. The Wisconsin trial court, in decid‐
ing whether the defense should go to the jury, asked for an
offer of proof and an evidentiary hearing. Schmidt complied
with the first request but balked at the second, not wanting to
show any more of his defense hand. That concern was well
taken, and the trial court ordered an ex parte, in camera exam‐
ination of Schmidt instead. The trial court added, however,
that Schmidt’s lawyer could “not say[ ] anything” and would
“just be present” for the examination.
The trial court questioned Schmidt in chambers. Schmidt’s
lawyer observed silently. Schmidt rambled, interrupted only
by a few open‐ended questions from the trial court and a brief
break during which he reviewed his offer of proof with his
lawyer. After the examination, the trial court ruled that
Schmidt did not act with adequate provocation. He therefore
could not raise the defense at trial. A jury later convicted
Schmidt of first‐degree homicide, and he was sentenced to life
in prison.
Schmidt petitioned for a writ of habeas corpus, arguing
that the trial court’s in camera examination deprived him of
counsel and due process. The district court denied Schmidt’s
petition, and a divided panel of our court reversed and re‐
manded with instructions to grant it. We vacated that deci‐
sion, reheard the case en banc, and now affirm the district
court’s judgment. The state trial court’s unusual examination
of Schmidt was constitutionally dubious, and we discourage
the measure. But our habeas review is limited. We ask
whether the state court of appeals unreasonably applied
clearly established Supreme Court precedent in rejecting
Schmidt’s constitutional claims. We answer that it did not.
No. 17‐1727 3
I. Background
During an argument on April 17, 2009, Schmidt followed
his estranged wife, Kelly Wing‐Schmidt, out of her home and
onto her driveway. There, he shot her seven times with his
revolver. Police arrived and found Schmidt standing over the
body with the gun in his hand. He confessed immediately.1
A. Pretrial Proceedings
Wisconsin charged Schmidt with first‐degree intentional
homicide. He never recanted his confession, but he did intend
to present an affirmative defense—adequate provocation. See
Wis. Stat. § 940.01(2)(a). Under Wisconsin law, that defense
mitigates intentional homicide from first degree to second. Id.
§ 939.44(2). The defense has “both subjective and objective
components”—a defendant “must actually believe the
provocation occurred” and the provocation must be one “that
would cause an ordinary, reasonable person to lack self‐
control completely.” State v. Schmidt, 824 N.W.2d 839, 842
(Wis. Ct. App. 2012) (citing Wis. Stat. § 939.44(1); State v.
Felton, 329 N.W.2d 161, 172 (Wis. 1983)). “Once a defendant
successfully places” adequate provocation “in issue,” the
state must disprove it beyond a reasonable doubt. Id. at 843
(citing State v. Head, 648 N.W.2d 413 (Wis. 2002)). To place the
defense “in issue,” a defendant need only present “‘some’
1
The material facts of this case are undisputed, and this background
draws directly from the state courts’ findings and the trial record. See State
v. Schmidt, 824 N.W.2d 839 (Wis. Ct. App. 2012); State v. Schmidt, No. 09
CF 275, slip op. (Wis. Cir. Ct. July 27, 2011). Schmidt has not attempted to
rebut any of the state courts’ findings, and so we presume that they are
correct. 28 U.S.C. § 2254(e)(1); see also Hicks v. Hepp, 871 F.3d 513, 525 (7th
Cir. 2017).
4 No. 17‐1727
evidence supporting the defense.” Id. (quoting Head, 648
N.W.2d at 439).
Before trial, Schmidt filed a motion notifying the trial court
and the state that he intended to present the adequate‐
provocation defense. He intended, specifically, to introduce
evidence of Wing‐Schmidt’s “false allegations, controlling
behaviors, threats, isolation, unfaithfulness, verbal abuse and
arguments.” The state argued that evidence of the couple’s
history, however fraught, did not support a theory of
adequate provocation under Wisconsin law.
The trial court held a pretrial hearing in early 2010. At the
hearing, the court echoed the state’s concern that Schmidt’s
proposed provocation evidence, most of which related to
events years before the murder, was irrelevant and would un‐
fairly prejudice the state’s case. The trial court therefore or‐
dered an evidentiary hearing to determine whether Schmidt
could meet his threshold burden. It instructed Schmidt that
during the hearing his counsel could call witnesses, and, if the
court was unsatisfied with the evidence presented, Schmidt
could supplement the record. Before the hearing, Schmidt had
to file a list of witnesses he intended to call.
Schmidt did so. His counsel filed a list of 29 witnesses with
short summaries of their anticipated testimony, a legal analy‐
sis of the defense’s applicability, and a five‐page offer of proof
with a six‐year timeline of the couple’s troubled history. A
few days later, at another hearing, the trial court noted that it
had reviewed Schmidt’s submissions, but its reservations per‐
sisted. The trial court did not, however, ask for the presenta‐
tion of witnesses or evidence from Schmidt, as it had said it
would the month before. Instead, the court explained that its
review of Wisconsin law—namely, State v. McClaren, 767
No. 17‐1727 5
N.W.2d 550 (Wis. 2009)—confirmed that a hearing was appro‐
priate, but that it should hold the hearing in camera to protect
the defense from disclosing its trial strategy to the state (a
measure McClaren blessed, 767 N.W.2d at 559 n.12). Schmidt’s
lawyer responded that additional evidence was unnecessary,
but he agreed that if the court was going to question Schmidt
it should do so in camera and ex parte. Schmidt’s lawyer, in
fact, noted that he intended to suggest that, if the court
“ask[ed] for evidence from the defendant that goes to his sub‐
jective belief for adequate provocation,” it should do so
through an “ex parte in‐camera inspection of the Court and
the defendant and seal those records.” The state agreed this
was the “best way” to handle the court’s examination.
The trial court then asked the state whether it would object
to Schmidt’s lawyer silently observing the examination. The
state did not object—nor, for that matter, did Schmidt’s law‐
yer. The state noted, though, that it did not want Schmidt con‐
ferring with counsel about how to answer the court’s ques‐
tions. Before concluding the in‐court hearing and beginning
the in camera examination, the court offered Schmidt’s lawyer
“a few minutes” to consult with his client. Schmidt’s lawyer
accepted.
The in camera examination opened with the trial court put‐
ting on the record that Schmidt’s lawyer was “present but …
not participating in the hearing.” The court then asked
Schmidt “what was in your mind” when he confronted Wing‐
Schmidt. Schmidt’s answer, which went on uninterrupted for
14 transcript pages, addressed the events leading up to the
killing, some history between him and his estranged wife, the
moment of the killing (though he professed not to remember
pulling the trigger), and the immediate aftermath. The trial
6 No. 17‐1727
court stopped Schmidt as he was describing his arrest. It ex‐
plained to Schmidt that his “attorney has made an offer of
proof about other things that had occurred prior to this that
had entered into your mind at the time.” The trial court asked
Schmidt to “tell us how those things entered into your mind
at the time?” Schmidt explained that his estranged wife had
threatened to take the kids and physically abused him. The
trial court asked again; Schmidt continued to detail the cou‐
ple’s troubled history.
The trial court explained that Schmidt’s testimony did not
align with his offer of proof, to which Schmidt replied that he
had not even seen the offer. The trial court then suggested a
“short break,” during which Schmidt could review the offer
of proof while the court took a phone call. Schmidt’s lawyer
asked if he could consult with his client. The trial court re‐
sponded, “It’s off the record. Yeah, you can talk. But he
should just be reviewing” the offer of proof.
Back on the record, the trial court noted that they had
taken a break so that Schmidt could “review this offer of proof
and different facts contained in it.” Then, and again, the trial
court asked Schmidt about “what you contemplated at the
time” of the killing. Schmidt responded that everything had
come “to a head,” he was “overwhelmed, and eventually just
got—they piled up one after another.” Schmidt elaborated
upon events that happened in years past—financial struggles,
abusive behavior, and fights. The trial court concluded the ex‐
amination, asked Schmidt and his lawyer to return to the
courtroom, and said that it would consider its decision.
Schmidt’s lawyer did not ask to supplement his evidentiary
presentation with affidavits or additional testimony.
No. 17‐1727 7
That afternoon, and without further argument, the trial
court ruled. It did not detail factual findings, citing the ex parte
and in camera nature of the examination. Its conclusion was
that the killing “did not involve a provocation and it was not
an adequate provocation.”
A month later, at another pretrial hearing, the parties dis‐
cussed whether Schmidt would call one of the witnesses iden‐
tified in his annotated witness list. The trial court stated that
since it had ruled on the defense’s admissibility, it did not see
the relevance of the testimony. Schmidt’s lawyer explained
that he thought the “issue open” and believed that the court
would allow further supplementation. The trial court rejected
that idea, noting again that it had already ruled on the de‐
fense’s admissibility. The court would, though, allow Schmidt
to “supplement the record for appeal.” Schmidt’s lawyer did
not do so.
B. Trial and Posttrial Proceedings
Trial began on March 4, 2010, and lasted five days. The
jury convicted Schmidt of first‐degree homicide.
Schmidt moved for a new trial on two grounds: the denial
of his due process right to present a defense and the denial of
his Sixth Amendment right to counsel during the in camera
examination. The trial court held oral argument. During oral
argument, the trial court asserted that the examination was
simply “an effort to supplement the writing” which the court
“relied upon and made reference to” during the examination.
At the end of oral argument, the court denied Schmidt’s mo‐
tion and issued its opinion. The opinion explained:
[D]efense counsel suggested and agreed to an in‐camera
hearing, and did not at any point request to actively
8 No. 17‐1727
participate in the in‐camera examination. In addition, there
was a break during the in‐camera hearing to allow defense
counsel and defendant to confer regarding the offer of
proof. Thus, defense counsel actively participated prior to
and during the in‐camera proceeding. As the State notes,
this is not a circumstance where the issues and argument
were undertaken by the defendant without representation
of counsel. The nature and detail of the written offer of
proof clearly indicates that counsel discussed the numerous
points with the defendant.
The opinion repeated that the defense “expressed a prefer‐
ence for, and agreed to, an in‐camera proceeding for the de‐
fendant’s oral offer of proof” and that “[a]t no time did coun‐
sel make a request to question the defendant.” It concluded,
in “view of defense counsel’s extensive argument and sub‐
missions with regard to the adequate provocation defense,
the Court finds there was no denial of the right to counsel.”
The trial court sentenced Schmidt to the mandatory pen‐
alty for first‐degree homicide—life in prison. See Wis. Stat.
§§ 940.01, 939.50(3)(a), 973.014(1g).
C. The Court of Appeals Decision
Schmidt appealed. The Court of Appeals of Wisconsin ex‐
plained first that Schmidt’s case presented a “close question”
as to whether he put forth “some evidence” of adequate prov‐
ocation. Schmidt, 824 N.W.2d at 850. It noted that the state had
conceded that “Schmidt, subjectively, acted in the heat of pas‐
sion when he shot Wing‐Schmidt.” Id. at 850 n.8; see also id. at
844 n.5. But the state court of appeals, citing mostly Schmidt’s
“rambling narrative” during the in camera examination, held
that Schmidt had failed to present some evidence of objec‐
tively adequate provocation. Id. at 847, 850–52. It cited also the
No. 17‐1727 9
lengthy history of hostility between Schmidt and his es‐
tranged wife. Considering this history and the fact that
Schmidt had a hand in starting the fight that culminated in
the killing, the court decided that Schmidt “deliberately chose
to ignite the fire.” Id. at 852.
The court of appeals also rejected Schmidt’s right‐to‐
counsel claim. The in camera examination was, according to
the court, “merely a supplementary proceeding conducted for
his benefit.” Id. Especially in light of McClaren, the court said,
the examination in “a nonadversarial atmosphere was a
reasonable accommodation.” Id. at 852–53. Regarding
Schmidt’s argument that the examination was a “critical
stage,” the court of appeals saw it as “[f]atal” that the
examination was “not the only opportunity for Schmidt to
present his provocation evidence to the court.” Id. at 853. The
court added that, in any event, the trial court “recessed to
allow Schmidt to review his attorney’s written offer of proof
and speak with his attorney.” Id. The court of appeals
concluded that “if counsel felt Schmidt or the court was
overlooking something, or had any other concerns, there was
an opportunity to so advise Schmidt.” Id. Plus, according to
the court, “Schmidt had the opportunity to present any
concerns or questions he had to his attorney.” Id.
D. Federal‐Court Proceedings
Schmidt turned to federal court, petitioning for a writ of
habeas corpus. The district court denied Schmidt’s petition. It
concluded that the state courts had not deprived Schmidt of
his due process right to present a defense. It concluded fur‐
ther that the state courts had not unreasonably applied clearly
established Supreme Court law in rejecting Schmidt’s right‐
to‐counsel claim. See 28 U.S.C. § 2254(d)(1). On both claims,
10 No. 17‐1727
however, the district court granted a certificate of appealabil‐
ity. See id. § 2253(c).
A divided panel of our court reversed and remanded.
Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018). The majority rea‐
soned that Schmidt had a clearly established right to counsel
at critical stages, and, in this case, there was no more im‐
portant stage for Schmidt—whose sole defense hinged on the
ruling that immediately followed—than the ex parte, in camera
examination. The majority did not reach Schmidt’s due pro‐
cess claim. The warden petitioned for a rehearing en banc. A
majority of active judges voted to grant the petition, and we
vacated our initial opinion. Schmidt v. Foster, 732 F. App’x 470
(7th Cir. 2018).
II. Discussion
We review the district court’s decision de novo, but our
inquiry is an otherwise narrow one. Freeman v. Pierce, 878 F.3d
580, 585 (7th Cir. 2017). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a federal court may grant
habeas relief after a state‐court adjudication on the merits
only when that decision (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;” or
(2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed‐
ing.” 28 U.S.C. §§ 2254(d)(1), (2). We focus here on the state
court of appeals opinion, as the last reasoned state‐court de‐
cision on the merits. Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018). The question, all agree, is whether that opinion unrea‐
sonably applied clearly established Supreme Court prece‐
dent. See 28 U.S.C. § 2254(d)(1).
No. 17‐1727 11
The bounds of a reasonable application depend on “the
nature of the relevant rule.” Yarborough v. Alvarado, 541 U.S.
652, 664 (2004). “The more general the rule, the more leeway
courts have in reaching outcomes in case‐by‐case determina‐
tions.” Id. The Supreme Court has emphasized that only its
holdings define the constitutional rule invoked. Harrington v.
Richter, 562 U.S. 86, 100 (2011); see also Carey v. Musladin, 549
U.S. 70, 75–77 (2006). If a rule entails an “inevitable” applica‐
tion to a set of facts, courts must apply it to those facts. Long
v. Pfister, 874 F.3d 544, 549 (7th Cir. 2017) (en banc), cert. denied,
138 S. Ct. 1593 (2018); see also Panetti v. Quarterman, 551 U.S.
930, 953 (2007). But AEDPA “does not require state courts to
extend” precedent nor does it “license federal courts to treat
the failure to do so as error.” White v. Woodall, 572 U.S. 415,
426 (2014) (emphasis omitted). Time and again, the Court has
cautioned against stretching its precedent to declare state‐
court decisions unreasonable. Sexton v. Beaudreaux, 138 S. Ct.
2555, 2558–60 (2018) (per curiam); Virginia v. LeBlanc, 137 S.
Ct. 1726, 1728–29 (2017) (per curiam); Woods v. Etherton, 136 S.
Ct. 1149, 1152 (2016) (per curiam); Woods v. Donald, 135 S. Ct.
1372, 1376–77 (2015) (per curiam); Lopez v. Smith, 135 S. Ct. 1,
3–4 (2014) (per curiam); Nevada v. Jackson, 569 U.S. 505, 512
(2013) (per curiam).
A state‐court decision can be a reasonable application of
Supreme Court precedent even if, in our judgment, it is an in‐
correct application. McDaniel v. Polley, 847 F.3d 887, 893 (7th
Cir. 2017), cert. denied sub nom. McDaniel v. Foster, 138 S. Ct.
554 (2017); Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.
2011). A state‐court decision can be a reasonable application
even if the result is clearly erroneous. Woodall, 572 U.S. at 419.
And a state‐court decision can withstand habeas review even
when the petitioner presents “a strong case for relief.”
12 No. 17‐1727
Harrington, 562 U.S. at 102. Only when a state‐court decision
is “so lacking in justification that there was an error well un‐
derstood and comprehended in existing law beyond any pos‐
sibility for fairminded disagreement” does it constitute an un‐
reasonable application of clearly established law. Id. at 103;
Woodall, 572 U.S. at 420. This standard is as Congress in‐
tended: “difficult to meet.” Harrington, 562 U.S. at 102; Sexton,
138 S. Ct. at 2558. As we have said, solely in “those relatively
uncommon cases in which state courts veer well outside the
channels of reasonable decision‐making about federal consti‐
tutional claims” is habeas relief appropriate. Dassey v.
Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc), cert. de‐
nied, 138 S. Ct. 2677 (2018).
This is not one of those uncommon cases. In our narrow
habeas review, we need not, and do not, endorse the consti‐
tutionality of the trial court’s unusual ex parte, in camera exam‐
ination without counsel’s active participation. See, e.g., Mar‐
shall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam). It is enough
to say that the Supreme Court has “never addressed” a case
like this one—factually or legally—and so we cannot brand
the state‐court decision unreasonable. Carey, 549 U.S. at 76.
A. Right‐to‐Counsel Claim
The Sixth Amendment provides that in “all criminal pros‐
ecutions, the accused shall enjoy the right … to have the As‐
sistance of Counsel for his defence.” U.S. Const. amend. VI.
This right means more than a lawyer at trial. See Powell v. Al‐
abama, 287 U.S. 45, 60–66 (1932). It ensures that defendants fac‐
ing incarceration will have counsel at “all critical stages of the
No. 17‐1727 13
criminal process.” Marshall, 569 U.S. at 62 (citation omitted);
see also, e.g., Lee v. United States, 137 S. Ct. 1958, 1964 (2017).
Schmidt’s claim is not about the effectiveness of his law‐
yer, a claim which would require him to show prejudice. See
Strickland v. Washington, 466 U.S. 668 (1984). He argues, in‐
stead, that his lawyer’s court‐ordered silence during the ex‐
amination completely deprived him of counsel at a critical
stage, such that prejudice is therefore presumed. This type of
claim has its roots in United States v. Cronic, 466 U.S. 648
(1984). In Cronic, decided the same day as Strickland, the Su‐
preme Court synthesized its right‐to‐counsel jurisprudence to
date and, in doing so, described the “circumstances that are
so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.” Cronic, 466 U.S.
at 658; see also, e.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002)
(describing Cronic’s “three situations”); Reynolds v. Hepp, 902
F.3d 699, 705 (7th Cir. 2018) (same).
Schmidt invokes Cronic’s first and “[m]ost obvious” cir‐
cumstance—“the complete denial of counsel.”2 Cronic, 466
U.S. at 659. Such a denial need not last the entire proceeding,
but it must occur during a critical stage. Id. Cronic explained
that the Court has “uniformly found constitutional error
without any showing of prejudice when counsel was either
totally absent, or prevented from assisting the accused during
a critical stage.” Id. at 659 n.25. That explanation referred to
cases in which counsel had not been appointed to represent
2
Cronic’s other two scenarios concern (1) instances in which counsel
fails entirely to subject the prosecution to meaningful adversarial testing
and (2) circumstances in which even a fully competent lawyer likely could
not provide effective assistance. Cronic, 466 U.S. at 658–60. Schmidt’s claim
does not fit into either scenario, and he does not contend otherwise.
14 No. 17‐1727
the accused at the time of a critical stage in the proceeding,
White v. Maryland, 373 U.S. 59 (1963) (per curiam) (no counsel
present at entry of plea); Hamilton v. Alabama, 368 U.S. 52
(1961) (no counsel present at arraignment), or cases in which
a court order or state law barred counsel from assisting dur‐
ing a critical stage of the trial, Geders v. United States, 425 U.S.
80 (1976) (bar on consultation during overnight recess); Her‐
ring v. New York, 422 U.S. 853 (1975) (bar on summation);
Brooks v. Tennessee, 406 U.S. 605 (1972) (law requiring defend‐
ant to testify first at trial or not at all); Ferguson v. Georgia, 365
U.S. 570 (1961) (bar on eliciting client’s trial testimony). At all
rates, Cronic and later decisions emphasize that the denial
must be “complete” to warrant the presumption of prejudice.
Cronic, 466 U.S. at 659; Wright v. Van Patten, 552 U.S. 120, 125
(2008); Roe v. Flores‐Ortega, 528 U.S. 470, 483 (2000); see also
Penson v. Ohio, 488 U.S. 75, 88 (1988).
Cronic and its kin are clearly established law, but they
come with two caveats. First, the presumption of prejudice is
“narrow.” E.g., Florida v. Nixon, 543 U.S. 175, 190 (2004); Smith
v. Brown, 764 F.3d 790, 796 (7th Cir. 2014). It arises only when
the denial of counsel is extreme enough to render the prose‐
cution presumptively unreliable. Flores‐Ortega, 528 U.S. at
484; see also Mickens v. Taylor, 535 U.S. 162, 166 (2002). That
happens rarely: only once in the thirty‐plus years since Cronic
has the Court applied the presumption of prejudice it de‐
scribed in a critical‐stage case. See Penson, 488 U.S. at 88 (pre‐
suming prejudice where the defendant lacked counsel for ap‐
peal). Second, the Court has outlined the principles behind
the Cronic‐described rights in only general terms. As a result,
the “precise contours” of these rights “remain unclear.” Don‐
ald, 135 S. Ct. at 1377 (quoting Woodall, 572 U.S. at 424); see also
Van Patten, 552 U.S. at 125. State courts therefore “enjoy
No. 17‐1727 15
‘broad discretion’ in their adjudication” of them.3 Donald, 135
S. Ct. at 1377 (quoting Woodall, 572 U.S. at 424); accord Yar‐
borough, 541 U.S. at 664. Mindful of those principles, we turn
to the reasonableness of the state‐court decision denying
Schmidt’s claim that (1) at a critical stage (2) he was com‐
pletely denied counsel.
1. Critical Stage
The Supreme Court has not provided a concise explana‐
tion of what constitutes a critical stage. Van v. Jones, 475 F.3d
292, 312 (6th Cir. 2007). Broadly, it has described a critical
stage as a “step of a criminal proceeding” that holds “signifi‐
cant consequences for the accused.” Bell, 535 U.S. at 696 (cita‐
tions omitted). Alternatively, though still broadly, the Court
has said that whether a stage is critical depends on whether,
during a “particular confrontation,” the accused faces preju‐
dice that counsel could “help avoid.” United States v. Wade,
388 U.S. 218, 227 (1967); see also Rothgery v. Gillespie Cty., Tex.,
554 U.S. 191, 212 (2008) (stating “what makes a stage critical
is what shows the need for counsel’s presence”); United States
v. Ash, 413 U.S. 300, 313 (1973) (describing a critical stage as a
moment in which the accused requires “aid in coping with le‐
gal problems or assistance in meeting his adversary”).
However described, the Supreme Court has recognized a
range of pretrial, trial, and posttrial events to count as critical
stages. See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009)
(postindictment interrogation); Iowa v. Tovar, 541 U.S. 77, 87
3
We avoid calling these claims “Cronic claims,” as some have. Cronic
itself was not a case “in which the surrounding circumstance make it un‐
likely that the defendant could have received the effective assistance of
counsel.” 466 U.S. at 666. Cronic explained the rare types of cases in which
courts presume prejudice, but it did not exemplify any of them.
16 No. 17‐1727
(2004) (plea hearing); Penson, 488 U.S. at 88 (appeal); Estelle v.
Smith, 451 U.S 454, 470–71 (1981) (court‐ordered psychiatric
evaluation); Coleman v. Alabama, 399 U.S. 1, 9–10 (1970) (plu‐
rality) (preliminary hearing); Wade, 388 U.S. at 236–37
(postindictment lineup); Mempa v. Rhay, 389 U.S. 128, 134
(1967) (sentencing); White, 373 U.S. at 59–60 (plea entry); Ham‐
ilton, 368 U.S. at 53 (arraignment). Yet the Court has not con‐
fronted the circumstance that this case presents: a deprivation
of counsel during an in camera examination, which was con‐
ducted as a part of a broader, pretrial evidentiary presenta‐
tion. Its decisions, therefore, do not bind us on how to assess
the relevant stage, whether as the in camera examination alone
or as the entire evidentiary presentation.
That gap in the law shows itself here. In his papers,
Schmidt contended that the in camera examination was itself
the relevant critical stage. At oral argument, his counsel
seemed to take a different approach. She submitted that the
critical stage was the “entire proceeding” regarding the suffi‐
ciency of Schmidt’s provocation evidence, “one portion” of
which was the in camera examination. Under this view, the
critical stage comprised in‐court hearings, briefing, an offer‐
of‐proof submission, oral arguments, and, of course, the in
camera examination. The dissent, for its part, submits that both
the in camera examination and the broader evidentiary presen‐
tation are critical stages unto themselves, a conclusion which
means there can be critical stages within critical stages. That
may be one way to look at the problem. No Supreme Court
decision says that it is the only or right way.
We need not resolve how to define the scope of a critical
stage in cases like this one. Nor do we need to decide whether
this case presents a critical stage, whatever its scope, under
No. 17‐1727 17
clearly established law. AEDPA governs our review, and we
note only that these unanswered threshold questions portend
this case’s unsuitability for habeas relief. We can assume this
case involves a critical stage, and whether that stage was the
entire evidentiary presentation or only the in camera examina‐
tion, Schmidt cannot meet the second part of the analysis—
that he was so deprived of counsel as to mandate the pre‐
sumption of prejudice.
2. Complete Deprivation
Schmidt’s Cronic‐based claim lies only when there is a
“complete denial of counsel during a critical stage.” Flores‐
Ortega, 528 U.S. at 483 (emphasis added) (citing Cronic, 466
U.S. at 659; Penson, 488 U.S. at 88; Smith v. Robbins, 528 U.S.
259, 286 (2000)); see also Glebe v. Frost, 135 S. Ct. 429, 431 (2014)
(per curiam). Only for such out‐and‐out deprivations—those
“on par with total absence”—does the Court’s precedent
require the presumption of prejudice. Van Patten, 552 U.S. at
125; see also, e.g., Donald 135 S. Ct. at 1377.
Looking at the evidentiary presentation in its entirety,
Schmidt suffered nothing near a complete denial of counsel.
During the stage in question, Schmidt’s lawyer filed the notice
of the provocation defense, argued for its application during
court hearings, briefed the law, and submitted a detailed offer
of proof and an annotated witness list. Save for the one por‐
tion of the stage in which the trial court held the in camera ex‐
amination, Schmidt had full access to counsel. No Supreme
Court precedent suggests, much less establishes, that such
facts warrant the presumption of prejudice.
Even if the proper critical stage is the in camera examina‐
tion in isolation rather than the entire evidentiary
18 No. 17‐1727
presentation, the result is the same. During the examination,
as the trial court made clear, Schmidt’s lawyer was “present”
but could “not participat[e].” Schmidt insists that this de‐
prived him of counsel, and, to an extent, we agree. But again:
the deprivation must be “complete” to mandate the presump‐
tion of prejudice.
Schmidt and his counsel consulted immediately before the
examination. In the examination, the trial court repeatedly
referenced, and made plain that he was working from, the of‐
fer of proof Schmidt’s lawyer drafted. The trial court later
noted that the “nature and detail” of the offer of proof re‐
flected that counsel had discussed its many factual assertions
with Schmidt. Schmidt and his lawyer consulted again during
a recess in the examination, as the state court of appeals ob‐
served. See Schmidt, 824 N.W.2d at 853. In that recess, Schmidt
and his counsel—who had the benefit of hearing the trial
court’s questions and his client’s answers—discussed the of‐
fer of proof, the focus of the in camera examination. See id. To
be sure, Schmidt otherwise lacked assistance during the ex‐
amination. But he was not entirely, or “completely,” without
his lawyer’s help, and so a fair‐minded jurist could conclude
that the presumption does not apply. Cf. Penson, 488 U.S. at
88; Cronic, 466 U.S. at 659.
No clearly established holding of the Supreme Court man‐
dates otherwise. We, for example, have twice said that the
Court’s decisions establish a presumption of prejudice only
when counsel was “physically absent at a critical stage.” Mor‐
gan v. Hardy, 662 F.3d 790, 804 (7th Cir. 2011) (emphasis
added) (citations omitted); McDowell v. Kingston, 497 F.3d 757,
762 (7th Cir. 2007) (citations omitted); see also Rodgers, 569 U.S.
at 64 (stating a circuit court may rely on circuit precedent to
No. 17‐1727 19
determine whether it has recognized a “particular point in is‐
sue” as clearly established). We acknowledge that Morgan and
McDowell overstated the law; the Supreme Court has in fact
presumed prejudice for some constructive denials during a
critical stage despite counsel’s physical presence. See Herring,
422 U.S. at 865; Ferguson, 365 U.S. at 571. Yet we do not think
a state court unreasonably errs for understanding the Court’s
decisions in the same way that we have. See Woodall, 572 U.S.
at 422 n.3 (noting that divergent court of appeals decisions “il‐
lustrate the possibility of fairminded disagreement”).
Or take how we explained the Court’s precedent in Kitchen
v. United States, 227 F.3d 1014 (7th Cir. 2000). In Kitchen, we
described the Court’s complete‐denial cases (specifically in
the appellate‐stage context) as establishing that the presump‐
tion of prejudice applies only when “defendants have had no
assistance of counsel for any issues.” 227 F.3d at 1020–21 (em‐
phases in original) (citing Flores‐Ortega, 528 U.S. at 483). Not
so for Schmidt, who again consulted with his lawyer before
and during the examination and reviewed the offer of proof
that his lawyer prepared before answering questions focused
on that offer.
Consider also Estelle v. Smith. In Estelle, a defendant
submitted to a court‐ordered psychiatric examination, but
neither the state nor the trial court notified his appointed
counsel. 451 U.S. at 470–71. That evaluation “proved to be a
‘critical stage’” in his prosecution because the state later used
the findings against the defendant. Id. The Court, however,
did not take issue with the counsel’s absence during the
critical stage. See id. It instead held that the defendant’s
inability to consult with his counsel before “making the
significant decision of whether to submit to the
20 No. 17‐1727
examination”—that is, his inability to consult with counsel
before entering the critical stage—violated his right to
counsel. Id. at 471. Apply Estelle’s reasoning here: Schmidt
could, and did, consult with his counsel before submitting to
(and during) the in camera examination, and thus the right‐to‐
counsel problem does not necessarily follow.4
Of all the Supreme Court’s decisions, Ferguson comes clos‐
est to establishing a principle that the state‐court decision may
have misapplied. Cronic described Ferguson as a presumed‐
prejudice case because, there, counsel was “prevented from
assisting the accused during a critical stage” (though Ferguson
did not use the phrase “critical stage”). 466 U.S. at 659 n.25.
Specifically, Ferguson involved a Georgia law that prohibited
a defendant from testifying in his own defense. 365 U.S. at
570–71. By extension, the law prohibited a defendant from
having counsel elicit his testimony. The Court held that the
Georgia law denied the defendant “the guiding hand of coun‐
sel” and was therefore unconstitutional. Id. at 572 (quoting
Powell, 287 U.S. at 69).
To conclude that Ferguson clearly established a rule subject
to misapplication here is to read it at too high a level of gen‐
erality. See Long, 874 F.3d at 547. Ferguson held only that a state
law effectively banning counsel from eliciting his client’s trial
testimony was unconstitutional. It did not establish that
4
As the vacated panel opinion noted, Estelle, like this case, involved a
“non‐adversarial setting where the prosecutor was absent.” Schmidt, 891
F.3d at 313. We express no opinion as to whether ex parte examinations—
if ever necessary—require active and unhampered counsel. The point re‐
mains, however, that no clearly established Supreme Court holding tells
us what constitutes a complete denial of counsel in those unique circum‐
stances.
No. 17‐1727 21
defendants have an absolute right to have their counsel elicit
any important testimony, or else prejudice will be presumed.
Here, in fact, Schmidt did not even ask that his counsel elicit
his testimony—he objected to the need to adduce more evi‐
dence, but he agreed that an in camera examination was ap‐
propriate to address the trial court’s concerns. What is more,
Ferguson concerned (1) a defendant’s statements (2) about his
innocence (3) during a jury trial. This case concerns (1) a de‐
fendant’s response to questions, in part guided by his written
offer of proof, (2) regarding the admissibility of a defense (3)
in chambers. Those distinctions matter. Ferguson worried
about the “tensions of a trial,” embarrassment before “public
assemblies,” the chance to establish a defendant’s “innocence,”
and the risk that he could “overlook[ ] important” exculpatory
facts. Ferguson, 365 U.S. at 594–96 (emphases added) (citations
and quotations omitted). With none of those worries pressing
here, it is hardly “obvious” that Ferguson must control. Long,
874 F.3d at 549.
One may still argue that where state action (as opposed to
a lawyer’s neglect) causes a less‐than‐complete deprivation
during a critical stage, prejudice should still be presumed. A
loose reading of Cronic, which noted that the Court has pre‐
sumed prejudice when counsel was “prevented from assist‐
ing the accused during a critical stage,” could support that
view. 466 U.S. at 659 n.25 (citing, among other cases, Geders,
425 U.S 80; Herring, 422 U.S. 853; Brooks, 406 U.S. 605; Fergu‐
son, 365 U.S. 570); see also Strickland, 466 U.S. at 692 (citing
Cronic for the proposition that “prejudice is presumed … [af‐
ter] various kinds of state interference with counsel assis‐
tance”). But that view would be mistaken, at least as far as
clearly established law is concerned. The Court’s decisions,
Cronic included, speak of the “complete denial of counsel” at
22 No. 17‐1727
a critical stage. Van Patten, 552 U.S. at 125 (quoting Cronic, 466
U.S. at 659); Bell, 535 U.S. at 696; Flores‐Ortega, 528 U.S. at 483.
There is no clearly established lesser standard for state‐action
denials.
Glebe makes that clear. Glebe, like Herring, involved a
court‐ordered restriction on summation. Cronic described
Herring as a critical‐stage case (though Herring, like Ferguson,
did not use the phrase), and Herring held that a bar on all trial
summation violated the right to counsel. Cronic, 466 U.S. at
659 n.25; Herring, 422 U.S. at 865. In Glebe, the Court consid‐
ered whether a court‐ordered partial bar on trial summation
warranted the presumption of prejudice on habeas review.
The Court said it did not, because its precedent, namely Her‐
ring, establishes only that the “complete denial of summation”
requires the presumption. 135 S. Ct. at 431 (emphasis in orig‐
inal) (citing Herring, 422 U.S. 853). Even though a court order
caused the deprivation, Glebe held the petitioner’s claim to the
prevailing standard that the Court’s precedents establish—
that of a “complete denial.” Id. So too must we hold Schmidt’s
claim on habeas review.
The dissent sees the Supreme Court’s jurisprudence dif‐
ferently. It focuses on the fact that an accused is entitled to
effective counsel for every part of a critical stage. But the ex‐
istence of that right does not mean courts must presume prej‐
udice if it is infringed. The Court ruled out that possibility by
requiring a “complete denial of counsel during a critical
stage.” Flores‐Ortega, 528 U.S. at 483 (citing Cronic, 466 U.S. at
659).
The dissent also reads the Supreme Court’s decisions to
mean that courts may presume prejudice when the state in‐
terferes with the assistance of counsel. To get to that general
No. 17‐1727 23
proposition, the dissent connects Powell (which concerned the
last‐minute appointment of counsel before trial), with Hol‐
loway v. Arkansas, 435 U.S. 475 (1978) (which concerned a law‐
yer’s conflict of interests), with Brooks, Herring, and Geders
(which, as noted, concerned the sequencing of a defendant’s
testimony, summation, and an overnight recess, respectively),
and with Ferguson. This reading conflates decisions that the
Court, starting in Cronic, has thought distinct for right‐to‐
counsel purposes. Cronic, 466 U.S. at 659–61 & nn.25, 28 (citing
Brooks, Herring, Geders, and Ferguson as critical‐stage cases and
Powell and Holloway as cases in which “surrounding circum‐
stances made it so unlikely that any lawyer could provide ef‐
fective assistance”); see also Bell, 535 U.S. at 695–96. The ap‐
proach is also self‐defeating. If we must take several dissimi‐
lar decisions and reduce them to blanket principles in order
to arrive at a general proposition applicable here, the propo‐
sition is “far too abstract to establish clearly the specific rule”
Schmidt needs. Lopez, 135 S. Ct. at 4.
The state‐court decision was a reasonable application of
Supreme Court law, namely the complete‐denial requirement
for the presumption of prejudice in critical‐stage cases. We
could end there, but we add another reason the state‐court
decision has support. Even eschewing the complete‐denial re‐
quirement—and venturing beyond clearly established law5—
a fair‐minded jurist could conclude that this case’s facts were
5
The dissent criticizes our focus on the need for a “complete denial”
to presume prejudice as a “new theory” in this case. The warden argued
in his brief that Schmidt’s denial was not complete, and the state court of
appeals ruled similarly. See Schmidt, 824 N.W.2d at 853. That the vacated
panel decision chose not to address the Supreme Court’s complete‐denial
requirement does not make the theory new. See Schmidt, 891 F.3d at 318–
21.
24 No. 17‐1727
not “so likely to prejudice the accused” as to warrant the pre‐
sumption of prejudice upon which Schmidt’s case depends.
Cronic, 466 U.S. at 658.
As noted, Wisconsin’s adequate‐provocation defense has
“both subjective and objective components.” Schmidt, 824
N.W.2d at 842. The primary purpose of the in camera exami‐
nation was to assess Schmidt’s subjective belief of provoca‐
tion. For that reason, virtually all the trial court’s questions
were aimed at Schmidt’s mental state at the time of the shoot‐
ing. It inquired: “[W]hat was in your mind at that time?”;
“[H]ow things entered into your mind at the time?”; “How
did you contemplate these things on the 17th?” It wanted to
know “what [Schmidt] contemplated at the time,” and what
“weighed on [his] mind.” If in responding to these questions
Schmidt had failed to convince the trial court of his subjective
belief of provocation, perhaps his lack of full access to counsel
while facing these questions would suggest prejudice. But
that is not what happened. The trial court ruled that, based on
Schmidt’s proffer and his testimony, Schmidt lacked facts
“that would drive a reasonable person to kill his spouse.” It did
not decide whether Schmidt lacked adequate subjective evi‐
dence but only ruled on the objective prong. The state then
conceded on appeal that Schmidt had satisfied the subjective
prong. Schmidt, 824 N.W.2d at 844 n.5, 850 n.8. The court of
appeals, in turn, agreed with the trial court, ruling that
Schmidt’s defense fell short only for want of objectively ade‐
quate provocation evidence. Id. at 852.
Schmidt did not have full use of counsel during the
examination, but a fair‐minded jurist could find that
circumstance not presumptively prejudicial. The trial court
and court of appeals had plenty before them in deciding
No. 17‐1727 25
whether Schmidt’s evidence sufficed: Schmidt’s motion, a
brief arguing the defense’s legal support, a written offer of
proof setting forth the defense’s factual support, a summary
of 29 witnesses’ testimony, counsel’s oral argument, and 35
transcript pages of Schmidt’s testimony.6 Schmidt has not
cited one fact or piece of evidence that he could have raised
during the examination if only he had counsel. He, instead,
argues that his testimony was filled with “trivial, irrelevant[ ]
matters.” That is hard to believe, because he prevailed on the
subjective prong. But even if the argument held water, it is
unclear how superfluous testimony would likely prejudice
him. The state courts needed to look only for “some evidence”
of adequate provocation, and we cannot presume that they
are prone to distraction or obfuscation by a poorly performing
witness. There are therefore grounds to think that the
deprivation here did not render “the proceeding
presumptively unreliable.” Flores‐Ortega, 528 U.S. at 484. At
the least, “[n]o precedent of th[e] Court clearly forecloses that
view.” Etherton, 136 S. Ct. at 1152.
It is true, as the dissent points out, that the judges who
have rejected Schmidt’s right‐to‐counsel claim have had dif‐
ferent reasons for doing so. Those judges have decided that
Schmidt had adequate counsel (the state courts), that the
6
At oral argument, Schmidt’s lawyer emphasized that the state court’s
analysis rested on Schmidt’s in camera testimony. This, according to
Schmidt’s lawyer, undermines the impact of Schmidt’s other counseled
opportunities to present evidence. The state‐court decision did in fact ex‐
amine the offer, Schmidt, 824 N.W.2d at 851–52, and to the extent it focused
on Schmidt’s testimony that is because on appeal Schmidt “relie[d] pri‐
marily upon the in camera testimony,” id. at 846. Schmidt did not even dis‐
cuss his annotated witness list in his opening brief to the court of appeals.
Id. at 846 n.7.
26 No. 17‐1727
examination was not a critical stage (the state court of ap‐
peals), that the examination was too incomparable to any‐
thing the Supreme Court has considered (the district court),
that the examination was not a critical stage under clearly es‐
tablished law (the panel dissent), and that Schmidt was not
completely denied counsel under clearly established law (our
majority). The dissent thinks this divergence of thought sug‐
gests that denying Schmidt relief is an error. The opposite is
true. That so many judges see Schmidt’s claim differently un‐
derscores that there is room for fair‐minded disagreement
about how to view and resolve Schmidt’s claim. E.g., Harring‐
ton, 562 U.S. at 103.
That room exists because the Supreme Court has never ad‐
dressed a case like this. Its decisions, instead, emphasize the
limited reach of right‐to‐counsel claims that presume preju‐
dice, especially when considered on habeas review. See Don‐
ald, 135 S. Ct. at 1377; Van Patten, 552 U.S. at 125. Without
clearly established law mandating relief, we cannot grant it
under AEDPA.
B. Due Process Claim
Schmidt also raises a due process claim. He argues on ap‐
peal that the trial court’s “inquisitorial” (as opposed to adver‐
sarial) procedure for resolving the admissibility of his only
defense “was so arbitrary” that it violated his right to present
a defense. Schmidt admits that this is a “novel” argument. He
submits, however, that novelty does not doom his claim—he
argues that the claim should enjoy de novo review because the
state court of appeals did not address it.7
7
We are not so sure the state court of appeals “inadvertently over‐
looked” Schmidt’s due process claim thus subjecting it to de novo review,
No. 17‐1727 27
The warden argues that Schmidt has procedurally de‐
faulted and waived this claim. There is another problem
worth addressing first. In its order denying Schmidt’s peti‐
tion, the district court certified the following for appeal:
Schmidt’s argument that the state court violated his right to
present a defense when it ruled he had not met his burden
on the state law affirmative defense of adequate provoca‐
tion.
That is not the argument Schmidt now advances. To be sure,
the argument he now advances is difficult to pin down. His
opening brief focused on the arbitrariness of the examina‐
tion’s procedure; on reply he submits that his perhaps “eso‐
teric” claim is “not [focused on] the process per se or the result
per se” but the “arbitrariness, which suffused” both. At any
rate, the challenge is not one to the trial court’s evidentiary
ruling vis‐à‐vis his right to present a defense.
“When a petitioner’s case is subject to § 2253(c),” as this
case is, “non‐certified claims are not properly before this
court.” Bolton v. Akpore, 730 F.3d 685, 698 (7th Cir. 2013). We
have, moreover, “repeatedly reminded habeas corpus peti‐
tioners, especially when represented by counsel, to request
permission before arguing non‐certified claims.” Welch v.
Hepp, 793 F.3d 734, 737–38 (7th Cir. 2015) (collecting cases).
That much aside, a “defect in a certificate concerning one
as the district court ruled. Johnson v. Williams, 568 U.S. 289, 303 (2013). Be‐
fore the state court of appeals, Schmidt couched his due process argument
in his state‐law argument that he was entitled to the defense of adequate
provocation. The state court of appeals held that he was not entitled to the
defense under state law, and under Schmidt’s then‐theory that holding
likely resolved his due process claim as well. Schmidt, 824 N.W.2d at 850–
52. We need not decide the issue, though, for reasons explained in the text.
28 No. 17‐1727
claim does not deprive us of jurisdiction over that claim.” Id.
(citing Gonzalez v. Thaler, 565 U.S. 134, 142 (2012)). Looking
beyond the certificate‐of‐appealability problem, we agree
with the warden that the due process claim is procedurally
defaulted and waived.
A habeas petitioner may not raise a federal claim that he
has not exhausted in state court. 28 U.S.C. § 2254(b)(1)(A). He
must instead fairly present his federal claim to the state courts
so that they have a “fair opportunity” to consider and, if
needed, correct the constitutional problem. Picard v. Connor,
404 U.S. 270, 275–76 (1971). We have laid out four factors to
determine whether a petitioner has defaulted a claim:
1) whether the petitioner relied on federal cases that engage
in a constitutional analysis; 2) whether the petitioner relied
on state cases which apply a constitutional analysis to simi‐
lar facts; 3) whether the petitioner framed the claim in terms
so particular as to call to mind a specific constitutional right;
and 4) whether the petitioner alleged a pattern of facts that
is well within the mainstream of constitutional litigation.
Brown, 764 F.3d at 796 (quoting Ellsworth v. Levenhagen, 248
F.3d 634, 639 (7th Cir. 2001)). These factors are not applied
mechanically. The “bottom line” is whether “in concrete,
practical terms, … the state court was sufficiently alerted to
the federal constitutional nature of the issue to permit it to re‐
solve that issue on a federal basis.” Kurzawa v. Jordan, 146 F.3d
435, 442 (7th Cir. 1998) (quoting Verdin v. O’Leary, 972 F.2d
1467, 1476 (7th Cir. 1992)).
The court of appeals could not have been so alerted here.
Schmidt concedes his claim is “novel” in the law. It is neither
in the mainstream nor evocative of a specific constitutional
right. True, Schmidt did cite Chambers v. Mississippi, 410 U.S.
No. 17‐1727 29
284 (1973), and related cases to the state court of appeals. That,
however, was not enough to flag to the state court the claim
he now brings. Chambers did not deal with “a defendant’s
ability to present an affirmative defense”—which adequate
provocation is under Wisconsin law—nor has Chambers been
understood to apply in that context. Gilmore v. Taylor, 508 U.S.
333, 343 (1993); see also Kubsch v. Neal, 838 F.3d 845, 858 (7th
Cir. 2016) (en banc).
We afford relatively little leeway to habeas petitioners
who try to reformulate due process arguments. Chambers v.
McCaughtry, 264 F.3d 732, 738 (7th Cir. 2001) (citing Kurzawa,
146 F.3d at 443). Schmidt’s claim before the state court of ap‐
peals was that a “defendant’s due process right to a fair trial
renders it incumbent upon a trial court to err on the side of
admitting evidence of a mitigation defense.” That is a far cry
from what he argues now, namely, “the trial court’s inquisi‐
torial procedure … was so arbitrary that it violated Schmidt’s
constitutional right to present a defense.” These two claims
are not variations of the same theory, see, e.g., McGee v. Bartow,
593 F.3d 556, 566 (7th Cir. 2010); they are different in kind.
Schmidt points to no cause, prejudice, or miscarriage of jus‐
tice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). His due
process claim is procedurally defaulted.
It is also waived. Schmidt’s argument at the district court
was a straightforward one under Chambers v. Mississippi, chal‐
lenging the trial court’s “ruling” and “exclusion” of his de‐
fense. He did not, as he does now, challenge the ex parte, in
camera examination as itself violative of due process.
30 No. 17‐1727
III. Conclusion
Nothing we have said should be mistaken as belief that the
ex parte, in camera examination of Schmidt, held without his
counsel’s active participation and regarding his principal de‐
fense, was in fact constitutional. A pillar of the Sixth Amend‐
ment is the right to unhampered counsel; the aim of the Sixth
Amendment is to protect the promise of a fair trial tested by
adversaries. Trial courts must promote access to counsel and
guard the adversarial process while it runs its course. These
principles hold even when—especially when—courts meet
uncharted waters filled with risk for an accused facing life in
prison.
Applied here, trial courts should not opt to hold ex parte
hearings and silence defense counsel over other, less severe
alternatives without exceedingly good reasons. Even then,
trial courts must, if necessary, obtain a knowing and volun‐
tary right‐to‐counsel waiver from the accused for purposes of
the hearing.
These, however, are our admonitions. They are not clearly
established Supreme Court precedent dictating habeas relief
in this case. No such precedent exists. For that reason, we
AFFIRM the district court’s judgment.
No. 17‐1727 31
HAMILTON, Circuit Judge, joined by WOOD, Chief Judge, and
ROVNER, Circuit Judge, dissenting. The state trial court violated
Schmidt’s right to counsel. The judge was questioning the ac‐
cused on the merits of the case. Yet the judge ordered his lawyer
not to participate in the hearing. This constitutional violation
was clear even under the demanding standard for federal ha‐
beas corpus relief in 28 U.S.C. § 2254(d)(1).
The accused in a criminal case is entitled to the assistance
of counsel in any “critical stage” of the prosecution, a category
that applies broadly. E.g., Bell v. Cone, 535 U.S. 685, 695–96
(2002) (describing a “critical stage” as “a step of a criminal
proceeding, such as arraignment, that held significant conse‐
quences for the accused”). The Supreme Court’s critical‐stage
cases show beyond reasonable debate that the judge’s inter‐
rogation of Schmidt about his mitigation defense was a criti‐
cal stage. By commanding the lawyer to stay silent while the
judge interrogated his client, the judge violated the right to
counsel that is a foundation of our system of criminal justice.
Denying counsel at such a critical stage requires relief without
separate proof of prejudice from the denial. E.g., Bell v. Cone,
535 U.S. at 695–96; United States v. Cronic, 466 U.S. 648, 658–60
(1984).
The majority tries not to decide the critical‐stage issue and
then denies habeas relief on the new theory that the state
court’s denial of counsel was not quite “complete.” The the‐
ory does not hold up against the Supreme Court’s right‐to‐
counsel cases, which show that a “complete” denial is suffi‐
cient to presume prejudice, but it’s not necessary. The majority,
not the Supreme Court, has introduced here the notion that
only a “complete” denial of counsel requires a presumption
of prejudice. But see Cronic, 466 U.S. at 659 n.25 (“The Court
32 No. 17‐1727
has uniformly found constitutional error without any showing
of prejudice when counsel was either totally absent, or pre‐
vented from assisting the accused during a critical stage of the pro‐
ceeding.”) (collecting cases discussed below) (emphases
added).
If the judge had simply said that he wanted to hear what
the accused had to say without any counsel even present, I
could not have imagined, at least before this case, that any
court in the United States would find such interrogation ac‐
ceptable without a valid waiver of counsel by Schmidt him‐
self.
The only difference here is that Schmidt’s lawyer was
physically present in the room, but the judge might as well
have gagged him: he ordered the lawyer not to “participate”
in this critical stage of the prosecution. I don’t see a constitu‐
tional difference between an absent lawyer and a silenced
lawyer.
The majority’s own discomfort with the state court’s ex‐
traordinary procedure shines through from beginning to end:
“constitutionally dubious,” “we discourage the measure,”
“we … do not endorse the constitutionality of the trial court’s
unusual … examination,” “these … are our admonitions.”
That discomfort is fully justified.
Readers will notice, in addition to the majority’s discom‐
fort, that the theories to justify denying relief to Schmidt kept
shifting. The state trial court concluded that Schmidt was not
denied counsel at the ex parte hearing because his counsel sub‐
mitted the written offer of proof, made an oral argument, and
conferred with Schmidt during the brief recess for the judge’s
telephone call. That was wrong because Schmidt’s testimony
No. 17‐1727 33
was itself a critical stage. Even if one thinks of the entire pre‐
trial proceeding as the critical stage, Schmidt was entitled to
counsel for all of the critical stage, not just part of it. The state
appellate court found that the ex parte hearing was not a criti‐
cal stage at all, but “merely a supplementary proceeding con‐
ducted for his benefit,” so that Schmidt was not entitled to
counsel at all. State v. Schmidt, 2012 WI App 113, ¶¶ 46–48, 344
Wis. 2d 336, 362–63, 824 N.W.2d 839, 852–53. That was wrong
because the hearing so easily satisfied the Supreme Court’s
criteria for a critical stage: the accused confronted the state,
and his interests were at greater risk without counsel. E.g.,
United States v. Wade, 388 U.S. 218, 227 (1967).
The federal district court focused on the unique ex parte
procedure here, concluding briefly that habeas relief should
be denied because the Supreme Court has not yet confronted
an identical situation of silenced counsel in an in camera hear‐
ing. Schmidt v. Pollard, No. 13‐CV‐1150, 2017 WL 1051121, at
*11 (E.D. Wis. Mar. 20, 2017). That was more understandable
but wrong because § 2254(d)(1) does not insist on such a close
fit where the violation of rights is so clear. E.g., Panetti v. Quar‐
terman, 551 U.S. 930, 953 (2007).
The panel dissent focused on the absence of the prosecu‐
tor, reasoning that the Supreme Court’s critical‐stage cases
did not require state courts to treat Schmidt’s testimony as a
critical stage. Schmidt v. Foster, 891 F.3d 302, 322 (7th Cir. 2018)
(Barrett, J., dissenting). That was wrong because the accused
was still facing the power of the state (in the person of the
judge) during the prosecution, and his interests were very
much at risk, especially without counsel.
The en banc majority offers yet another theory: assuming
that Schmidt’s testimony was a critical stage, the denial of
34 No. 17‐1727
counsel was not “complete” and did not prejudice him, or at
least so the state courts might reasonably have concluded. Cf.
Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (federal habeas
review should ordinarily focus on state courts’ stated reasons
rather than those that might be imagined). The majority’s new
theory requires it to embrace at least one of two mistaken
propositions. The first is that Supreme Court precedents al‐
low state courts to deprive a defendant of counsel for part of
a critical stage of the prosecution. But see Ferguson v. Georgia,
365 U.S. 570 (1961). The second is that Supreme Court prece‐
dents allow state courts to silence a lawyer in a critical stage
as long as the lawyer is physically present in the room. But
see Cronic, 466 U.S. at 569 n.25 (collecting the relevant cases).
Both propositions are contrary to Supreme Court precedent.
It is widely recognized that the Supreme Court has re‐
cently been using summary reversals of decisions granting
habeas relief to push lower federal courts toward faithful ap‐
plication of the demanding standard in 28 U.S.C. § 2254(d)(1).
In this case, the majority has over‐corrected. It denies habeas
relief in the face of a blatant violation of the right to counsel.
It does so by suggesting immaterial distinctions that the Su‐
preme Court itself has refused to draw in its right‐to‐counsel
decisions. We should grant a writ of habeas corpus to allow
petitioner Schmidt a fair chance to show that he was guilty of
second‐degree murder rather than first‐degree murder. I re‐
spectfully dissent.
I. The Facts
Schmidt’s testimony in the ex parte, in camera hearing
addressed the only contested issue in his case. He admitted
shooting his wife while he was still standing over her holding
a smoking gun. He faced a mandatory life sentence for first‐
No. 17‐1727 35
degree murder. The only way he might have avoided a life
sentence was to show that he acted under “adequate
provocation,” which could have mitigated the crime to
second‐degree murder. See Wis. Stat. §§ 939.44, 940.01(2)(a).
The judge decided to evaluate the proposed defense be‐
fore trial. The judge wanted to see if Schmidt could satisfy the
modest “some evidence” standard under state law for sub‐
mitting the defense to the trial jury. See State v. Schmidt, 2012
WI App 113, ¶¶ 8–11, 344 Wis. 2d 336, 343–44, 824 N.W.2d
839, 843. We know that Schmidt’s testimony was critical for
the judge’s pretrial decision. The judge had already reviewed
a written submission from Schmidt’s counsel and had heard
argument from both the defense lawyer and the prosecutor.
Those submissions had not convinced the judge either way.
Before making a decision, the judge wanted to hear directly
from Schmidt himself.
The majority places great, perhaps even decisive, im‐
portance on the brief recess late during Schmidt’s testimony
during the ex parte hearing. The recess came as a surprise to
everyone except the judge, who announced that he needed to
make a telephone call. When Schmidt’s lawyer asked the
judge for permission merely to talk with his client—a phrase
that deserves emphasis: merely to talk with his client during a
recess—the judge told the lawyer he could only review with
Schmidt the written offer of proof summarizing the intended
defense. This limited opportunity for a brief talk with counsel
was not enough to satisfy the Sixth Amendment “in any sub‐
stantial sense,” and to conclude otherwise “would simply be
to ignore actualities.” Powell v. Alabama, 287 U.S. 45, 58 (1932);
see also Geders v. United States, 425 U.S. 80, 91 (1976) (court
36 No. 17‐1727
violated right to counsel by preventing counsel from confer‐
ring with client during overnight trial recess). At no point
during the in camera examination was Schmidt’s counsel al‐
lowed to question him directly to focus attention on the key
facts or to guide him toward meeting his burden of produc‐
tion for his defense in mitigation.
II. Denial of Schmidt’s Right to Counsel
The Supreme Court has taught that it is supposed to be
difficult for a habeas petitioner to satisfy the standard of
§ 2254(d)(1). Schmidt must show that the state courts not only
erred but unreasonably applied controlling Supreme Court
precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). Since
the 1996 amendment of § 2254(d), habeas corpus relief is re‐
served for rare cases in which state courts have strayed from
clearly established federal law. This case meets that standard.
Part II‐A explains why, under controlling Supreme Court
precedent, Schmidt’s testimony was a critical stage of the
prosecution. Part II‐B explains the principal mistakes in the
majority’s reasoning, which seeks to excuse the state court’s
denial of counsel in a critical stage on the theories that a state
court may deny the accused counsel for part of a critical stage
and/or that silencing the lawyer by court order during the
critical hearing was allowed because it was not a “complete”
denial of counsel as long as the lawyer was physically present.
A. Critical Stage
The Sixth Amendment guarantees that in “all criminal
prosecutions, the accused shall enjoy the right” to “have the
Assistance of Counsel for his defence.” The Supreme Court
has long recognized that the right applies not only at trial but
No. 17‐1727 37
also at all “critical stages” of the adversary process. E.g., Pow‐
ell v. Alabama, 287 U.S. 45, 57 (1932); Coleman v. Alabama, 399
U.S. 1, 9–10 (1970) (plurality opinion); Hamilton v. Alabama,
368 U.S. 52, 53–55 (1961); United States v. Wade, 388 U.S. 218,
227–28 (1967); Rothgery v. Gillespie County, 554 U.S. 191, 212–
13 & n.16 (2008). The majority tries not to base its denial of
habeas relief on the absence of a critical stage. The majority
questions whether this hearing was a critical stage but in the
end assumes without deciding that it was. Still, the critical‐
stage issue must be addressed here. The majority’s ultimate
conclusion about a less than “complete” denial of counsel de‐
pends on its views on the critical‐stage issue.
The judge’s ex parte, in camera interrogation of the accused
on the merits of his case was certainly a critical stage under
the Court’s Sixth Amendment right‐to‐counsel decisions. The
majority complains that the Supreme Court has not provided
one single definition of a critical stage. The slightly different
phrasing in different cases does not reflect substantive uncer‐
tainty about the broad and inclusive standard. In Bell v. Cone,
the Court concisely said that a critical stage is “a step of a
criminal prosecution, such as arraignment, that held signifi‐
cant consequences for the accused.” 535 U.S. at 695–96. In
Wade, the Court explained that a court must “scrutinize any
pretrial confrontation of the accused to determine whether
the presence of his counsel is necessary to preserve the de‐
fendant’s basic right to a fair trial as affected by his right
meaningfully to cross‐examine the witnesses against him and
to have effective assistance at the trial itself,” and the court
must analyze “whether potential substantial prejudice to de‐
fendant’s rights inheres in the particular confrontation and
the ability of counsel to help avoid that prejudice.” 388 U.S. at
38 No. 17‐1727
227. And in United States v. Ash, the Court said we must “de‐
termine whether the accused required aid in coping with legal
problems or assistance in meeting his adversary.” 413 U.S.
300, 313 (1973).
However the standard is phrased, the judge’s interroga‐
tion of the accused easily satisfies it. More important than the
particular phrasing of the standard are the many Supreme
Court decisions actually applying the standard. The sheer
number and range of these cases, discussed below, show that
the right to counsel at a critical stage is not narrow and fact‐
bound.
It’s not surprising that the Supreme Court has not consid‐
ered an ex parte, in camera hearing on a substantive issue quite
like this one. Virtually all judges in American courts under‐
stand that they simply may not do what this judge did. This
hearing was an extraordinary, apparently unprecedented, de‐
parture from the most basic standards of criminal procedure
in our system of criminal justice: “The very premise of our
adversary system of criminal justice is that partisan advocacy
on both sides of a case will best promote the ultimate objective
that the guilty be convicted and the innocent go free.” United
States v. Cronic, 466 U.S. 648, 655 (1984), quoting Herring v.
New York, 422 U.S. 853, 862 (1975).
By questioning the accused directly, the trial judge here
improvised a procedure that abandoned that “very premise
of our adversary system of criminal justice.” Then he prohib‐
ited defense counsel from participating. This hearing thus vi‐
olated Schmidt’s Sixth Amendment right to the assistance of
counsel, which “has been understood to mean that there can
be no restrictions upon the function of counsel in defending a
No. 17‐1727 39
criminal prosecution in accord with the traditions of the ad‐
versary factfinding process that has been constitutionalized in
the Sixth and Fourteenth Amendments.” Herring, 422 U.S. at
857, quoted in Cronic, 466 U.S. at 656 n.15.
In any event, the Supreme Court has explained that 28
U.S.C. § 2254(d)(1) does not require “federal courts to wait for
some nearly identical factual pattern” before granting relief.
Panetti v. Quarterman, 551 U.S. 930, 953 (2007), quoting Carey
v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in
judgment); see also Williams v. Taylor, 529 U.S. 362, 407 (2000)
(holding that state courts can unreasonably apply clearly es‐
tablished federal law to facts the Supreme Court has not con‐
sidered). “Nor does [§ 2254(d)(1)] prohibit a federal court
from finding an application of a principle unreasonable when
it involves a set of facts ‘different from those of the case in
which the principle was announced.’” Panetti, 551 U.S. at 953,
quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003). What mat‐
ters is the extent of guidance provided by relevant Supreme
Court precedents.
Here that guidance is extensive. The Supreme Court has
treated as a critical stage every stage of the criminal process
between arraignment and appeal that either addresses a sub‐
stantive issue or risks loss of a procedural right. Critical stages
include: a preliminary hearing at which defendant could
cross‐examine witnesses and otherwise test the evidence
against him; arraignments at which defenses must be as‐
serted; entry of a plea; pretrial identification through an in‐
person line‐up; pretrial interrogation by a government in‐
formant; sentencing hearings; and deferred sentencing hear‐
ings that revoke probation. See Coleman v. Alabama, 399 U.S.
at 9 (plurality); id. at 11 (Black, J., concurring) (preliminary
40 No. 17‐1727
hearing where defendant could test evidence to avoid indict‐
ment and build record for trial); Hamilton v. Alabama, 368 U.S.
at 54 (arraignment where defenses could be “irretrievably
lost, if not then and there asserted”); White v. Maryland, 373
U.S. 59, 60 (1963) (entry of plea); Moore v. Michigan, 355 U.S.
155, 156, 159 (1957) (entry of plea); United States v. Wade, 388
U.S. at 236–37 (pretrial in‐person identification); Massiah v.
United States, 377 U.S. 201, 206 (1964) (pretrial interrogation);
Townsend v. Burke, 334 U.S. 736, 740–41 (1948) (sentencing);
Mempa v. Rhay, 389 U.S. 128, 137 (1967) (deferred sentencing
and revocation of probation).
The Court has explained its decisions by focusing on the
consequences of the particular stage, and in particular on con‐
sequences for the defendant’s ability to receive a fair trial. See,
e.g., Wade, 388 U.S. at 227. Looking both at what the Supreme
Court has done and at what it has said shows beyond reason‐
able dispute that testimony on a contested substantive issue
is a critical stage of the proceedings. The Court has repeatedly
found that pretrial stages were critical as long as the accused
risked serious consequences affecting the fairness of the trial.
In the face of the extensive body of case law, the majority has
not identified any Supreme Court case even suggesting, let
alone holding, that a hearing comparable to the one in this
case was not a critical stage, or offered a plausible theory for
saying it was not.
The ex parte, in camera hearing certainly had the potential
to prejudice Schmidt’s defense. The Sixth Amendment analy‐
sis focuses on whether there is a potential for prejudice given
what or whom the uncounseled defendant must confront and
what counsel could do later to fix the defendant’s mistakes.
E.g., Ash, 413 U.S. at 313, 317; Coleman, 399 U.S. at 7 (plurality);
No. 17‐1727 41
id. at 11 (Black, J., concurring); Wade, 388 U.S. at 227. In this
case, Schmidt was asked to show before trial that he could
meet the burden of production to go forward at trial with his
only defense in mitigation. No stage was more critical. What
happened in the judge’s chambers settled Schmidt’s fate.
The risks for Schmidt were evident. Without assistance of
counsel, he faced the risks that the judge might lose sight of
the elements of adequate provocation or might fail to separate
the wheat from the extensive chaff in Schmidt’s rambling an‐
swers. There was also a risk that Schmidt would help the
judge, perhaps unconsciously, convert the hearing into a
mini‐trial on the ultimate merits of the defense rather than a
debate about only the burden of production. If Schmidt had
met the burden of production—and only that burden—he
would have had the right to present his evidence and to argue
his defense to the jury. The trial judge’s oral ruling suggests
that this risk might have been realized here: “The Court finds
that the circumstances that led to the death of Kelly Wing did
not involve a provocation and it was not an adequate provo‐
cation and denies the motion.” That conclusion sounds a lot
more like a decision on the ultimate merits of the defense than
a decision on the burden of production.
In addition, Schmidt’s counsel could not fix later the harm
done by Schmidt’s rambling answers. The judge, having si‐
lenced counsel in the ex parte hearing, rejected the defense
shortly after the hearing ended. When counsel tried to revisit
the issue shortly before trial, the judge refused, saying he had
already made his decision. Because counsel could not later
undo the harm to Schmidt, the risk of prejudice at the eviden‐
tiary hearing affected his trial.
42 No. 17‐1727
Finally, there should be no doubt that Schmidt could have
benefited from his attorney’s help at the hearing. In Ferguson
v. Georgia, 365 U.S. 570, 594–96 (1961), the Supreme Court ex‐
plained the need for counsel in a context very close to this
case. At that time, Georgia prohibited the accused from testi‐
fying in his own defense, but state law allowed the accused to
make an unsworn statement to the jury. In making such a
statement, however, the accused ordinarily had to do so with‐
out questioning by his counsel to guide him.
The Supreme Court held in Ferguson that the accused had
a right to have his lawyer question him to help elicit his state‐
ment. In explaining this conclusion, the Court quoted Chief
Justice Cooley, the nineteenth‐century jurist from Michigan,
in a lengthy passage that recognizes how essential a lawyer’s
help can be, and that fits Schmidt’s case well:
But to hold that the moment the defendant
is placed upon the stand he shall be debarred of
all assistance from his counsel, and left to go
through his statement as his fears or his embar‐
rassment may enable him, in the face of the con‐
sequences which may follow from imperfect or
unsatisfactory explanation, would in our opinion
be to make, what the statute designed as an im‐
portant privilege to the accused, a trap into which
none but the most cool and self‐possessed could place
himself with much prospect of coming out un‐
harmed. An innocent man, charged with a hei‐
nous offence, and against whom evidence of
guilt has been given, is much more likely to be
overwhelmed by his situation, and embar‐
rassed, when called upon for explanation, than
No. 17‐1727 43
the offender, who is hardened in guilt; and if he
is unlearned, unaccustomed to speak in public as‐
semblies, or to put together his thoughts in consecu‐
tive order any where, it will not be surprising if his
explanation is incoherent, or if it overlooks important
circumstances.
365 U.S. at 595–96 (emphases added), quoting Annis v. People,
13 Mich. 511, 519–20 (1865) (reversing conviction where trial
judge had not allowed defense counsel to remind defendant
he had omitted a material fact from his statement).
Schmidt was not innocent, but the danger that Ferguson
described came to pass here. Without the guidance of coun‐
sel’s questioning, Schmidt provided a rambling and dis‐
jointed narrative, much like the defendants in Ferguson and
Annis. Even without the assistance of counsel, Schmidt’s ac‐
count of the circumstances came close to supporting his de‐
fense in mitigation. (The state appellate court said that was a
“close question.”) The “Assistance of Counsel for his defence”
could have helped Schmidt organize the facts, present a co‐
herent and legally relevant response, and meet the burden of
production. Without counsel acting in that role at this critical
stage, “a serious risk of injustice infects the trial itself.” Cronic,
466 U.S. at 656, quoting Cuyler v. Sullivan, 446 U.S. 335, 343
(1980).
The majority, however, struggles with the critical‐stage is‐
sue, unsure whether it should focus on the entire pretrial eval‐
uation of Schmidt’s mitigation defense or on only Schmidt’s
interrogation by the judge. Precedent and common sense
show that both are properly considered critical stages for pur‐
poses of the Sixth Amendment.
44 No. 17‐1727
In terms of precedent, for example, Ferguson shows that
when the accused tells the trier of fact his story, that’s a critical
stage by itself. Denying assistance of counsel for just that part
of the trial required reversal, though counsel was present and
active in defending during the rest of the trial. See also, e.g.,
Herring, 422 U.S. at 857 (closing argument was critical stage).
In terms of common sense, consider the alternative view
adopted by the state appellate court, that Schmidt’s testimony
was not itself a critical stage. If that were correct, then the
judge could have excluded Schmidt’s lawyer entirely without
violating the right to counsel. Yet in light of the Supreme
Court’s many decades of right‐to‐counsel decisions, it is hard
to imagine a more clear‐cut example of an unconstitutional
denial of counsel. Schmidt was entitled to the assistance of
counsel both while he was testifying and throughout the pre‐
trial proceeding, just as he was throughout the prosecution.
On the other side of the coin, neither the Wisconsin appellate
court, the state’s lawyers, nor the majority has offered a the‐
ory for treating Schmidt’s testimony as anything other than a
critical stage that can be reconciled with the Supreme Court’s
expansive treatment of the right to counsel.1
B. The Violation of Schmidt’s Right to Counsel
The judge’s order silencing Schmidt’s lawyer during the
interrogation violated Schmidt’s right to counsel. The state
1 The majority questions whether it’s possible to have “critical stages
within critical stages.” Ante at 16. Of course it is. A trial is a critical stage;
so is just the trial testimony of an eyewitness to the crime. A motion to
suppress is a critical stage; so is just the testimony of the police officer that
the accused consented to the search. It would be unreasonable to conclude
otherwise and to think the accused could be denied counsel for any of
those portions of the prosecution.
No. 17‐1727 45
courts’ different conclusion was, in terms of § 2254(d)(1), an
unreasonable application of clearly established Federal law,
as determined by the Supreme Court of the United States.
The Sixth Amendment, of course, guarantees the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668,
686 (1984); Cronic, 466 U.S. at 654; McMann v. Richardson, 397
U.S. 759, 771 (1970). A lawyer can be constitutionally
ineffective either because of the lawyer’s own errors or
because the government interferes with the lawyer’s
performance. Strickland, 466 U.S. at 687, 692; Cronic, 466 U.S.
658–60 (categorizing circumstances when government
interference with attorney performance violates Sixth
Amendment and prejudice is presumed). Interference is what
happened here, by judicially‐enforced silence.
1. The Presumption of Prejudice
The government violates the Sixth Amendment when it
interferes to such an extent that, “although counsel is availa‐
ble to assist the accused,” the “likelihood that any lawyer,
even a fully competent one, could provide effective assistance
is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct.” Cronic, 466 U.S. at
659–60. The Supreme Court has applied the presumption of
prejudice to a wide variety of forms of interference with coun‐
sel at all stages of prosecutions. And it has done so where the
interference fell well short of what the majority calls a “com‐
plete” denial of counsel.
As early as Powell v. Alabama, the Court held that “defend‐
ants were not accorded the right of counsel in any substantial
sense” when the court appointed defense lawyers for the
46 No. 17‐1727
Scottsboro Boys but did so on the morning of trial, giving
them no adequate time to prepare for trial. 287 U.S. at 57–58.
In Ferguson v. Georgia, the Court found unconstitutional a
rule that prohibited defense counsel—though physically pre‐
sent at trial and assisting in all other portions of the trial—
from directly examining a defendant who chose to speak in
his own defense. 365 U.S. at 596.
In Geders v. United States, the Court found that “an order
preventing petitioner from consulting his counsel ‘about any‐
thing’” overnight during trial “impinged upon his right to the
assistance of counsel.” 425 U.S. 80, 91 (1976).
In Brooks v. Tennessee, the Court held that a rule requiring
a defendant to testify first or not at all deprived the accused
of “the ‘guiding hand of counsel’ in the timing of this critical
element of his defense.” 406 U.S. 605, 612–13 (1972).
In Herring v. New York, the Court held that complete denial
of counsel’s ability to offer a summation was “a denial of the
basic right of the accused to make his defense.” 422 U.S. at
859.
And in Holloway v. Arkansas, the Court found that the
“mere physical presence of an attorney does not fulfill the
Sixth Amendment guarantee” when the state refused to ap‐
point counsel free of conflicts of interest. 435 U.S. 475, 490
(1978). The lawyer’s “conflicting obligations … effectively
sealed his lips on crucial matters.” Id.
In all of these cases, the Court explained in Cronic, the in‐
terference with defense counsel had led to a presumption of
prejudice. 466 U.S. at 659–61. The Court added in Cronic that
it had “uniformly found constitutional error” when counsel
was “either totally absent, or prevented from assisting the accused
No. 17‐1727 47
during a critical stage.” 466 U.S. at 659 n.25 (emphases added)
(collecting Supreme Court’s cases).
Given these cases and the Court’s own summary of them,
it is simply not reasonable to conclude that the physical pres‐
ence of a silenced lawyer satisfies the Sixth Amendment or
avoids the presumption of prejudice. Schmidt’s counsel was,
in the trial judge’s own words, “just … present” and “not say‐
ing anything” during the hearing. The judge told Schmidt—
and assured the prosecutor—that his lawyer would not speak
during the hearing. Once in chambers, the judge repeated the
command that Schmidt’s lawyer not participate. And
throughout the ex parte hearing, Schmidt spoke uninterrupted
by his counsel for long enough to fill thirty‐five transcript
pages. The judge addressed Schmidt directly, not his lawyer.
Consistent with the judge’s assurance to the prosecutor, the
judge never gave the lawyer an opportunity to question
Schmidt himself, to focus on key facts or to fill in gaps.
The state—in the person of the judge—thus prevented
Schmidt’s lawyer from performing the “role that is critical to
the ability of the adversarial system to produce just results.”
Strickland, 466 U.S. at 685. Schmidt’s lawyer was not allowed
to speak while the judge conducted his own interrogation of
Schmidt on the most important issue in his defense. It was ob‐
jectively unreasonable for the state court to conclude that
Schmidt’s counsel could have provided effective assistance
and meaningfully tested the arguments against the provoca‐
tion defense by “not saying anything.” See Cronic, 466 U.S. at
656, citing Anders v. California, 386 U.S. 738, 743 (1967) (sum‐
marizing Supreme Court precedent requiring counsel acting
as an advocate).
48 No. 17‐1727
2. The Majority’s Erroneous Premises
The majority concedes that Schmidt was denied counsel
“to an extent,” ante at 18, but justifies denial of habeas relief
on the theory that Schmidt’s deprivation of counsel was not
“complete,” so that the presumption of prejudice does not ap‐
ply. The majority offers two branches of reasoning to support
this conclusion. Both run contrary to clear Supreme Court
precedents on the right to counsel.
a. Denial for Part of a Critical Stage?
One branch of reasoning requires the majority to take
sides on the issue it says it does not decide: whether to con‐
sider Schmidt’s interrogation as a critical stage by itself. To
conclude that the denial of counsel was not complete, the ma‐
jority expands the lens to view the entire pretrial proceeding
to evaluate the mitigation defense: “Schmidt’s lawyer filed
the notice of the provocation defense, argued for its applica‐
tion during court hearings, briefed the law, and submitted a
detailed offer of proof and an annotated witness list.” Ante at
17. That is all true but beside the point, as a matter of fact and
law.
As a matter of fact, the judge clearly had not made up his
mind based on that information submitted with the lawyer’s
assistance. The decision point for the judge was his in camera
interrogation. Shortly after it ended, the judge made a final
decision that Schmidt would not be allowed to present his de‐
fense to the jury. Schmidt was denied counsel during that crit‐
ical event due to the court’s order silencing his lawyer.2
2 Since Schmidt’s testimony in the in camera hearing was so central to
the judge’s decision, it is difficult to understand the state appellate court’s
No. 17‐1727 49
As a matter of law, allowing a defense lawyer to submit
written and oral arguments cannot justify excluding or silenc‐
ing the lawyer for his client’s oral testimony. Consider, for ex‐
ample, a motion to suppress evidence in a criminal case. The
defense lawyer submits a brief and affidavits in advance of
the evidentiary hearing and then makes an opening state‐
ment. Could the judge then send the lawyer away (or silence
her) during the live witness testimony, or even the defend‐
ant’s own testimony? Surely not, yet under the majority’s ra‐
tionale, it would seem to be acceptable for the judge simply to
excuse the defense lawyer while her client is cross‐examined,
whether in a hearing on a motion to suppress or at trial. After
all, the lawyer would have participated in all other aspects of
the hearing or trial. Under the majority’s reasoning, there
would not be a “complete” denial of counsel at that critical
stage of the trial.
This reasoning runs contrary to Ferguson and Herring,
among other cases. In both, a state court prevented counsel
from providing effective assistance at a critical stage within a
larger critical stage. I am aware of no support for the major‐
ity’s logic in the Supreme Court’s critical‐stage jurisprudence,
and I hope that no court would follow the majority’s logic to
the conclusion allowing denial of counsel for “part” of any
critical stage. Yet the majority’s insistence that only a suppos‐
edly “complete” denial of counsel supports a presumption of
prejudice certainly points that way.
treatment of that hearing as not a critical stage but “merely a supplemen‐
tary proceeding conducted for [Schmidt’s] benefit.” See Schmidt, 2012 WI
App. 113 ¶ 46, 344 Wis. 2d at 362, 824 N.W.2d at 852.
50 No. 17‐1727
b. Denial of Counsel Need Not Be “Complete”
So let’s shift back to treat the in camera examination itself
as a critical stage. It is beyond dispute that Schmidt’s counsel
was silenced for the entirety of the judge’s questioning, and
the judge never modified his order to offer counsel an oppor‐
tunity to supplement.
The majority builds its entire decision on the premise that
Supreme Court precedent requires a “complete” denial of
counsel to invoke the presumption of prejudice. See ante at
17–26. That premise is demonstrably wrong. Start with United
States v. Cronic, where the Court described the “complete de‐
nial of counsel” as the “[m]ost obvious” situation for presum‐
ing prejudice. 466 U.S. at 659. It is surely correct that a “com‐
plete” denial of counsel is sufficient to invoke the presump‐
tion of prejudice, but Cronic and other cases cannot be read to
say a “complete” denial is necessary to invoke that presump‐
tion.
In that same paragraph, Cronic dropped a footnote that
shows the majority’s reading of Supreme Court precedent is
simply wrong:
The Court has uniformly found constitu‐
tional error without any showing of prejudice
when counsel was either totally absent, or pre‐
vented from assisting the accused during a critical
stage of the proceeding. See, e.g., Geders v. United
States, 425 U.S. 80 (1976); Herring v. New York,
422 U.S. 853 (1975); Brooks v. Tennessee, 406 U.S.
605, 612–613 (1972); Hamilton v. Alabama, 368
U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59,
60 (1963) (per curiam); Ferguson v. Georgia, 365
No. 17‐1727 51
U.S. 570 (1961); Williams v. Kaiser, 323 U.S. 471,
475–476 (1945).
466 U.S. at 659 n.25 (emphases added). Of the cited cases,
Geders, Herring, Brooks, and Ferguson fit the description that
counsel was “prevented from assisting the accused during a
critical stage of the proceeding.” (In Hamilton, White, and Wil‐
liams, the accused had no counsel at a critical stage.)
In the text, Cronic then explained that the presumption of
prejudice applied in the Scottsboro Boys case, Powell v. Ala‐
bama, because the same‐day appointment of counsel in the
capital case made it so unlikely that even a fully competent
lawyer could provide effective assistance. 466 U.S. at 659–61.
Cronic went on to collect other cases where counsel were pre‐
sent but forced to go to trial on schedules that made effective
assistance impossible. 466 U.S. at 661 n.28. Footnote 28 also
explained that ineffectiveness is presumed (i.e., prejudice is
presumed) when counsel “actively represented conflicting in‐
terests,” citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980);
Flanagan v. United States, 465 U.S. 259, 268 (1984); Holloway v.
Arkansas, 435 U.S. at 489–90; and Glasser v. United States, 315
U.S. 60, 67–77 (1942).
In short, while a “complete” denial of counsel is sufficient
to invoke the presumption of prejudice, the Cronic opinion it‐
self rebuts the majority’s assertion that “the denial must be
‘complete’ to warrant the presumption of prejudice.” Ante at
14.3
3 Given the clear language in Cronic discussed above, I do not see how
the majority can describe this account as a “loose reading of Cronic.” Ante
at 21.
52 No. 17‐1727
Nor do later cases fill in that gap for the majority. Roe v.
Flores‐Ortega, 528 U.S. 470, 483 (2000), held that a defense law‐
yer’s refusal to file a notice of appeal upon his client’s request
was ineffective per se, requiring relief in the form of permis‐
sion to pursue an appeal without requiring proof of prejudice.
The Flores‐Ortega opinion quoted and cited cases to the effect
that a complete denial of counsel supports a presumption of
prejudice. Id. at 483, citing Robbins, at 286 (“denial of counsel
altogether … warrants a presumption of prejudice”), and Pen‐
son v. Ohio, 488 U.S. 75, 88–89 (1988) (“complete denial of
counsel on appeal requires a presumption of prejudice”).
Again, these comments to the effect that a “complete” denial
of counsel invokes the presumption of prejudice do not show
that only a complete denial will suffice. And the language in
Flores‐Ortega cannot reasonably be read to erase from the
books Cronic, Holloway, Geders, Herring, Brooks, Powell, and
Ferguson, which show that the presumption of prejudice ap‐
plies to less‐than‐complete denials of counsel when a court
makes it impossible for counsel to provide effective assis‐
tance.
To support its requirement of “complete” denial, the ma‐
jority also cites Wright v. Van Patten, 552 U.S. 120, 125 (2008),
where the Court held that its precedents did not require a pre‐
sumption of prejudice where a state court allowed the defense
lawyer to appear at a guilty‐plea hearing by speakerphone.
Wright quoted, among other things, the critical note 25 from
Cronic, saying that prejudice is presumed when counsel is ei‐
ther totally absent or prevented from assisting the accused
during a critical stage of the proceeding. 552 U.S. at 125.
Wright did not impose a new requirement of “complete” de‐
nial of counsel, erasing in passing Cronic and the cases that it
(and I have) cited. Here’s the key passage from Wright:
No. 17‐1727 53
Our precedents do not clearly hold that
counsel’s participation by speakerphone should
be treated as a “complete denial of counsel,” on
par with total absence. Even if we agree with
Van Patten that a lawyer physically present will
tend to perform better than one on the phone, it
does not necessarily follow that mere telephone
contact amounted to total absence or “prevented
[counsel] from assisting the accused,” so as to entail
application of Cronic. The question is not
whether counsel in those circumstances will
perform less well than he otherwise would, but
whether the circumstances are likely to result in
such poor performance that an inquiry into its
effects would not be worth the time.
552 U.S. at 125 (emphasis added). This passage from Wright
also cannot be fairly read to impose a new requirement of
“complete” denial of counsel. It restated the Cronic standard,
which, as shown above, allows the presumption of prejudice
in a wide range of circumstances in which a trial court pre‐
vents a lawyer who is present from providing effective assis‐
tance. And the lawyer in Wright participated in a plea hearing
by speakerphone. He could at least be heard. That cannot rea‐
sonably be compared to this case, where the judge’s order si‐
lenced the lawyer.
To support its assertion that only a “complete” denial of
counsel will invoke the presumption of prejudice, the major‐
ity also quotes our decision in Kitchen v. United States, 227 F.3d
1014 (7th Cir. 2000). The majority writes: “In Kitchen, we de‐
scribed the Court’s complete‐denial cases (specifically in the
appellate‐stage context) as establishing that the presumption
54 No. 17‐1727
of prejudice applies only when ‘defendants have had no assis‐
tance of counsel for any issues.’ 227 F.3d at 1020–21 (emphases
in original) (citing Flores‐Ortega, 528 U.S. at 483).” Ante at 19.
The critical “only” in that sentence comes from the majority
here, not from Kitchen, let alone from the Supreme Court. The
same is true for all of the majority’s other attempts to intro‐
duce “only” into the standard for presuming prejudice.
Instead, Kitchen correctly cited Cronic and Strickland re‐
garding the presumption of prejudice, 227 F.3d at 1020, and
concluded that Kitchen’s claim of ineffective assistance of ap‐
pellate counsel required proof of prejudice under Strickland.
Kitchen had in fact had counsel on appeal who pursued sev‐
eral issues, including some that were successful. We correctly
treated Kitchen’s claim as one challenging his lawyer’s strate‐
gic choice of issues to pursue on appeal. 227 F.3d at 1021. Hav‐
ing appellate counsel who chooses which issues to pursue
cannot reasonably be compared with having a lawyer whom
the trial judge has silenced. Kitchen does not support the ma‐
jority’s attempt to impose “complete” denial as a new require‐
ment for the presumption of prejudice.
The majority also argues that a state court could reasona‐
bly conclude that the mere physical presence of counsel
should defeat the presumption of prejudice. To support this
notion, the majority quotes two of our precedents. Yet even
the majority acknowledges the quoted passages from those
two cases are demonstrably wrong. In Morgan v. Hardy, 662
F.3d 790 (7th Cir. 2011), we wrote: “The Supreme Court has
consistently limited the presumption of prejudice to cases
where counsel is physically absent at a critical stage.” Id. at
804, citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (withdrawal
of appellate counsel in criminal case), White v. Maryland, 373
No. 17‐1727 55
U.S. 59, 60 (1963) (no counsel for entry of plea in capital case),
and Hamilton v. Alabama, 368 U.S. 52, 54–55 (1961) (no counsel
for arraignment where defenses could be lost if not asserted).
That passage in Morgan had been copied verbatim, including
even the citations and their parentheticals, from the second
case the majority cites, McDowell v. Kingston, 497 F.3d 757, 762
(7th Cir. 2007), though Morgan did not cite McDowell.
Contrary to that language in Morgan and McDowell, and as
shown above, the Supreme Court in fact has decided quite a
few cases applying a presumption of prejudice where counsel
were physically present but prevented in a variety of ways
from providing effective assistance. E.g., Holloway, 435 U.S. at
490 (lawyer silenced on key issue by conflict of interest); Her‐
ring, 422 U.S. at 859 (closing argument prohibited); Geders, 425
U.S. at 91 (overnight consultation prohibited during trial);
Brooks, 406 U.S. at 609–12 (lawyer required to put defendant
on witness stand first or not at all); Ferguson, 365 U.S. at 596
(no assistance when defendant made his statement to trial
jury); and Powell, 287 U.S. at 57–58 (inadequate time to pre‐
pare).
The majority even acknowledges that the dicta in Morgan
and McDowell were wrong as a matter of fact. Yet to deny
Schmidt the benefit of the presumption of prejudice when his
lawyer was physically present but silenced, the majority of‐
fers the following astonishing excuse: “we do not think a state
court unreasonably errs for understanding the Court’s deci‐
sions in the same way that we have.” Ante at 19. This remark‐
able observation is wrong in two basic ways. First, it patron‐
izes the state courts, which did not make this error of thinking
that mere physical presence was enough, let alone cite Morgan
56 No. 17‐1727
or McDowell. Second, our erroneous dicta did not err in under‐
standing the Supreme Court’s decisions. They erred by over‐
looking those decisions. Oversights in our legal research could
not somehow create ambiguity in the Court’s case law.4
The majority correctly acknowledges that Ferguson v. Geor‐
gia offers strong support for Schmidt’s claim for denial of
counsel. Ante at 20. Recall that in Ferguson, state law prohib‐
ited the defense lawyer from calling the accused to the wit‐
ness stand and questioning him in the ordinary fashion. In‐
stead, the accused was required to make any statement on his
own behalf on his own, in narrative fashion, without guid‐
ance from a lawyer’s questioning. 365 U.S. at 571–72.
The majority offers several proposed distinctions to avoid
applying Ferguson to the denial of counsel in this critical stage
of the prosecution:
Ferguson held only that a state law effectively
banning counsel from eliciting his client’s trial
4 McDowell at least included a footnote recognizing that physical ab‐
sence was not actually required to apply the presumption of prejudice,
citing cases where counsel fell asleep during trial. 497 F.3d at 762 n.2, cit‐
ing Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en banc), Tippins v.
Walker, 77 F.3d 682, 686 (2d Cir. 1996), and Javor v. United States, 724 F.2d
831, 833 (9th Cir. 1984). The results in McDowell and Morgan did not de‐
pend on their erroneous “physical presence” dicta. In McDowell, the issue
was a tactical choice by defense counsel, not a court‐imposed gag. We held
that the state courts did not act unreasonably by applying Strickland v.
Washington and its requirement that prejudice from supposedly ineffec‐
tive assistance be shown rather than presumed. 497 F.3d at 763. And Mor‐
gan was never denied counsel. At least one defense lawyer was both phys‐
ically present and able to represent him throughout his trial. 662 F.3d at
804.
No. 17‐1727 57
testimony was unconstitutional. It did not es‐
tablish that defendants have an absolute right to
have their counsel elicit any important testi‐
mony, or else prejudice will be presumed.
Ante at 20–21. The majority also notes that Ferguson con‐
cerned a defendant’s statements about his innocence during a
jury trial, whereas Schmidt’s situation concerned his response
to questions, in part guided by his written offer of proof, in
chambers regarding the admissibility of a defense. According
to the majority, unlike with Schmidt’s situation, “Ferguson
worried about the ‘tensions of a trial,’ embarrassment before
‘public assemblies,’ the chance to establish a defendant’s ‘in‐
nocence,’ and the risk that he could ‘overlook[ ] important’ ex‐
culpatory facts.” Ante at 21, quoting Ferguson, 365 U.S. at 594–
96.
The majority assures us that these distinctions matter be‐
cause “none of those worries” apply here. That’s hard to ac‐
cept at face value. In terms of tension, no matter how many
people were in the room, the stakes could not have been
higher for Schmidt: life in prison versus a chance at a term of
years he might survive. Ferguson spoke in terms of an accused
who is “unaccustomed to speak in public assemblies, or to put
together his thoughts in consecutive order any where.” 365
U.S. at 595–96. And while Schmidt may or may not have over‐
looked any exculpatory facts, he certainly flooded the judge
with lots of irrelevant and distracting detail in his rambling
narrative, which conflicted, at least in the judge’s mind, with
the lawyer’s summary offer of proof. See ante at 6.
More important, when considering the majority’s pro‐
posed distinctions, it’s essential to remember that Ferguson
simply does not stand alone, in terms of precedent, logic, or
58 No. 17‐1727
common sense. The suggestion that its logic could be limited
to only one critical stage—trial testimony—runs counter to
the entire sweep of the Supreme Court’s critical‐stage juris‐
prudence. Is the majority’s theory that even if Ferguson estab‐
lished a rule for trials, a court may deny the accused the assis‐
tance of a lawyer in presenting his testimony in other critical
pretrial proceedings? The majority’s theory for treating this
state court decision as reasonable depends on suggesting dis‐
tinctions between Ferguson and this case that the Supreme
Court’s right‐to‐counsel cases reject: between trial and sen‐
tencing (see, e.g., Mempa v. Rhay, 389 U.S. 128 (1967)), and be‐
tween trial and pretrial hearings (see all the pretrial critical‐
stage cases). The Supreme Court has made sufficiently clear
that criminal courts may not pick and choose among critical
stages, denying assistance of counsel for only some of them as
long as they allow counsel for others.
The majority criticizes this analysis of the right‐to‐counsel
cases as too general, connecting Powell, Holloway, Brooks, Her‐
ring, Geders, and Ferguson. Ante at 22–23. In the majority’s
view, drawing a general principle from such varied contexts
simply cannot meet the burden of showing that habeas relief
is required by Supreme Court precedent. After the 1996
amendment to § 2254(d)(1), that is often a good argument
against habeas relief, but not here. The point here is that the
Supreme Court itself has applied both the right to counsel and
the presumption of prejudice in so many different contexts,
regardless of distinctions the majority invokes here. The right
to counsel is broad. So is the presumption of prejudice,
though not as broad as the right to effective assistance of
counsel. Habeas relief cannot reasonably be denied on the ba‐
No. 17‐1727 59
sis of distinctions the Supreme Court itself has rejected by ex‐
tending both that right and the presumption of prejudice so
broadly and in so many contexts.
Ferguson stated clearly what I would expect trial judges
and lawyers to take for granted: only the most extraordinary
client could provide a narrative as effective as an account of
relevant facts set forth through a lawyer’s organized direct ex‐
amination. Ferguson is only the closest example of a series of
Supreme Court cases, cited above, holding that an accused
was denied counsel when the state silences the lawyer or oth‐
erwise prevents the lawyer from providing effective assis‐
tance to the accused in any critical stage.5
I noted earlier a potentially relevant line of cases, though
one that neither the state courts nor the majority have in‐
voked. It addresses defense lawyers who fall asleep or who
are briefly absent from trial. The practical consequences of a
silenced lawyer are akin to those of a sleeping lawyer. The
5 The majority also seeks support from a most unlikely source: Estelle
v. Smith, 451 U.S. 454 (1981). In that case, the Supreme Court held that a
defendant was entitled to the assistance of his lawyer in deciding whether
to submit to a psychiatric evaluation. Id. at 471. The Court did not hold
that the accused had a right to have his lawyer present during the psychi‐
atric examination itself. Id. at 470 n.14. The majority suggests: “Apply Es‐
telle’s reasoning here: Schmidt could, and did, consult with his counsel
before submitting to (and during) the in camera examination, and thus the
right‐to‐counsel problem does not necessarily follow.” Ante at 20.
The majority seems to be suggesting that a state court could reasona‐
bly extend a case addressing a private psychiatric examination to other
critical stages of the prosecution, including an interrogation on the merits
by the judge. That is an unreasonable stretch, and it’s a symptom of the
majority’s over‐correction in applying § 2254(d)(1), trying much too hard
to find and support a theory to deny relief.
60 No. 17‐1727
general rule is that a lawyer who is physically present but
asleep is not acting as a lawyer for the accused. See, e.g.,
United States v. Roy, 855 F.3d 1133, 1161 (11th Cir. 2017) (en
banc); McDowell, 497 F.3d at 762 n.2; Burdine v. Johnson, 262
F.3d 336, 341 (5th Cir. 2001) (en banc); Tippins v. Walker, 77
F.3d 682, 686 (2d Cir. 1996); Javor v. United States, 724 F.2d 831,
833 (9th Cir. 1984). The cases show, however, that courts have
allowed for de minimis exceptions to the presumption of prej‐
udice, applying the presumption if counsel slept through a
“substantial portion” of the trial. Roy, 855 F.3d at 1161 (col‐
lecting cases); see also Woods v. Donald, 135 S. Ct. 1372, 1377–
78 (2015) (reversing grant of habeas relief where one defense
lawyer chose to miss ten minutes of testimony about other de‐
fendants and had told judge in advance that the testimony
would not matter to his client’s defense).
To determine what constitutes a “substantial portion,”
courts look at “the length of time counsel slept, the proportion
of the trial missed, and the significance of the potion counsel
slept through.” Roy, 855 F.3d at 1162, quoting United States v.
Ragin, 820 F.3d 609, 622 n.11 (4th Cir. 2016). Another consid‐
eration is “whether the specific part of the trial that counsel
missed is known or can be determined.” Id.
Those cases of dozing or briefly absent lawyers help illus‐
trate how different the denial of counsel was in this case.
There was nothing de minimis about this denial of counsel. The
lawyer was silenced during the entire interrogation, and the
importance of this interrogation cannot be overstated. It was
the decisive presentation of evidence on the only disputed is‐
sue. Having been ordered by the judge not to participate in it,
Schmidt’s lawyer might as well have been asleep … or en‐
tirely absent.
No. 17‐1727 61
The right to counsel at all critical stages of a prosecution is
not narrow and fact‐bound. It is critical to our criminal justice
system, and the presumption of prejudice is essential to the
Supreme Court jurisprudence enforcing that right. The major‐
ity has lost sight of the fact that the accused is entitled to the
assistance of counsel during the entirety of a critical stage, not
just part of it. Schmidt needed counsel’s help in confronting
the burden of production on a complex factual and legal de‐
fense. The court’s silencing of his lawyer deprived him of
counsel at the most critical stage of his case. When the state
denies a defendant counsel at a critical stage, prejudice is pre‐
sumed. E.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002); Cronic,
466 U.S. at 658–59 & n.25. This presumption should apply
here. We should reverse the denial of a writ of habeas corpus.
III. Schmidt’s Due Process Claim
Schmidt also argues that the state trial court deprived him
of his liberty without due process of law by denying him the
right to present his defense in mitigation to the jury. The Su‐
preme Court has long held that the accused in a criminal case
has a due process right to present a defense, and that arbitrary
or disproportionate limits on that right can violate the federal
Constitution. See, e.g., Holmes v. South Carolina, 547 U.S. 319,
329–31 (2006); Rock v. Arkansas, 483 U.S. 44, 55–57 (1987) (state
prohibited testimony from witnesses who had been hypno‐
tized); Crane v. Kentucky, 476 U.S. 683, 689–91 (1986) (state pro‐
hibited challenge to voluntariness of confession); Green v.
Georgia, 442 U.S. 95, 97 (1979) (at sentencing, state prohibited
hearsay from witness who testified that co‐defendant had
fired fatal shot); Chambers v. Mississippi, 410 U.S. 284, 302–03
(1973) (state hearsay rules barred reliable exculpatory evi‐
dence); accord, e.g., Kubsch v. Neal, 838 F.3d 845, 860–62 (7th
62 No. 17‐1727
Cir. 2016) (en banc) (same). This line of cases applies not only
to questions of innocence and guilt, but also to grounds for
mitigating punishment. Under this line of cases, state rules of
law that are ordinarily reasonable may, as applied, deprive a
particular defendant of liberty without due process.
To the extent Schmidt argues in this appeal that the state
trial court’s inquisitorial process—all questioning by the
judge rather than counsel—violated his due process rights,
that focus on the judicial questioning was not developed in
the state courts or the district court. At every stage of the pros‐
ecution and appellate and habeas review, including this ap‐
peal, however, Schmidt has raised a broader due process chal‐
lenge to the judge’s pretrial decision that prevented him from
presenting his “adequate provocation” defense to the trial
jury. His briefing has cited the Chambers/Holmes/Rock/Crane
line of Supreme Court due process cases and Wisconsin state
court decisions citing and applying them, including State v.
St. George, 2002 WI 50, ¶ 52, 252 Wis. 2d 499, 526–27, 643
N.W.2d 777, 788. His challenge in the state courts to the
judge’s pretrial decision was addressed primarily in terms of
state law: whether the judge erred in finding that Schmidt had
failed to produce “some evidence” of “adequate provoca‐
tion.” His argument included a clear assertion, however, that
he was also seeking relief on a federal due process theory.
Accordingly, on the question whether he fairly presented
his due process claim to the state courts and to the district
court, Schmidt has considerably stronger arguments than the
majority asserts. Since Schmidt’s claim for denial of his right
to counsel is so strong, however, I see no need to delve more
deeply into his due process theory.
No. 17‐1727 63
Conclusion
The violation of petitioner Schmidt’s right to counsel dur‐
ing the most critical stage of his prosecution was evident from
controlling Supreme Court precedent. The state courts’ rejec‐
tion of Schmidt’s claim was unreasonable under 28 U.S.C.
§ 2254(d)(1). We should reverse the denial of a writ of habeas
corpus and allow Schmidt a fair chance to show that he was
guilty of second‐degree murder rather than first degree mur‐
der.