Scott Schmidt v. Brian Foster
911 F.3d 469 (2018)
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Rule of Law:
Under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), a state court's rejection of a Sixth Amendment right-to-counsel claim is not an 'unreasonable application of clearly established Federal law' if the Supreme Court has not addressed a factually analogous situation, particularly when the alleged deprivation of counsel during a critical stage was not 'complete' in a manner that warrants the presumption of prejudice without an inquiry into actual harm.
Facts:
- Scott Schmidt shot and killed his estranged wife, Kelly Wing-Schmidt, seven times with his revolver in her driveway on April 17, 2009.
- Police arrived at the scene and found Schmidt standing over Kelly Wing-Schmidt's body with the gun in his hand, and he immediately confessed to the shooting.
- Wisconsin charged Schmidt with first-degree intentional homicide.
- Schmidt intended to present an adequate provocation defense, which, if successful, could mitigate the charge to second-degree homicide under Wisconsin law.
- Schmidt's defense lawyer filed a motion, a legal brief, and a detailed five-page offer of proof outlining the couple’s troubled six-year history and an annotated list of 29 witnesses to support the adequate provocation defense.
- The state trial court ordered an ex parte, in camera examination of Schmidt to determine whether he could meet his threshold burden for the adequate provocation defense, instructing his lawyer to be present but not to 'say[ ] anything' or 'participat[e]'.
- During the in camera examination, the trial court questioned Schmidt, who provided a 14-page uninterrupted narrative, and was later allowed a brief recess to consult with his lawyer regarding the offer of proof.
- Following the examination, the trial court ruled that Schmidt did not act with adequate provocation, thereby preventing him from raising the defense at trial.
Procedural Posture:
- Wisconsin charged Scott Schmidt with first-degree intentional homicide.
- The state trial court ordered an ex parte, in camera examination of Schmidt to determine the admissibility of his adequate provocation defense, where his lawyer was present but silent.
- The state trial court ruled that Schmidt could not present the adequate provocation defense at trial.
- A jury convicted Schmidt of first-degree homicide, and he was sentenced to life in prison.
- Schmidt moved for a new trial based on alleged due process and Sixth Amendment right-to-counsel violations, which the state trial court denied.
- Schmidt appealed to the Court of Appeals of Wisconsin, which affirmed his conviction, concluding he failed to present enough evidence for the defense and that the in camera examination was not a critical stage.
- Schmidt petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin, which denied his petition but granted a certificate of appealability on both his due process and right-to-counsel claims.
- A divided panel of the Seventh Circuit Court of Appeals reversed the district court's denial, holding that the in camera examination was a critical stage where Schmidt was unconstitutionally denied counsel, and remanded for the petition to be granted.
- The respondent-appellee, Brian Foster (Warden), petitioned for a rehearing en banc, which the Seventh Circuit granted, vacating the panel's decision.
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Issue:
Does a state trial court's order prohibiting a defendant's counsel from actively participating in an in camera examination, conducted to assess the defendant's affirmative defense, constitute an 'unreasonable application of clearly established' Sixth Amendment right-to-counsel precedent under AEDPA, warranting a presumption of prejudice?
Opinions:
Majority - St. Eve, Circuit Judge
No, the state court of appeals did not unreasonably apply clearly established Supreme Court precedent in rejecting Schmidt's Sixth Amendment right-to-counsel claim because Supreme Court jurisprudence requires a 'complete' denial of counsel during a critical stage for the presumption of prejudice to apply, and Schmidt was not completely denied counsel. The Court operates under the narrow scope of AEDPA review, which requires a state court decision to be 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.' The Supreme Court has not addressed a factual scenario precisely like this one—a court-ordered limitation on counsel's active participation during an in camera examination as part of a pretrial evidentiary presentation. Even assuming the examination was a critical stage, Schmidt's lawyer was present, filed numerous submissions including a detailed offer of proof and witness list, argued the defense in prior hearings, and consulted with Schmidt immediately before and during a recess in the examination. This level of participation, even with the court-ordered silence during direct examination, means the deprivation was not 'complete' or 'on par with total absence' as required by Cronic and its progeny to trigger a presumption of prejudice. Therefore, a fair-minded jurist could reasonably conclude that the state court's decision was not an unreasonable application of clearly established federal law. The majority also determined that Schmidt's due process claim was procedurally defaulted and waived, as it was reformulated on appeal and not properly presented in earlier proceedings.
Dissenting - Hamilton, Circuit Judge
Yes, the state trial court's order violated Schmidt's Sixth Amendment right to counsel, and the state appellate court's rejection of this claim was an unreasonable application of clearly established Supreme Court precedent. The judge's in camera interrogation of Schmidt on the merits of his only mitigation defense was unquestionably a 'critical stage' of the prosecution, as it had 'significant consequences for the accused.' The Supreme Court's 'critical stage' jurisprudence is broad and inclusive, applying to any step where the accused confronts the state and faces potential prejudice that counsel could help avoid. Cases like Ferguson v. Georgia, where a state law prohibited defense counsel from directly examining a defendant, show that denying a defendant the right to have counsel assist in presenting testimony is a constitutional violation, even if counsel is present for other parts of the proceeding. The dissent argues that the majority misinterprets 'complete denial' of counsel, as United States v. Cronic itself explained that prejudice is presumed when counsel is 'prevented from assisting the accused during a critical stage,' not just when counsel is 'totally absent.' Numerous Supreme Court cases (Powell, Ferguson, Geders, Brooks, Herring, Holloway) demonstrate that prejudice is presumed when government interference significantly impairs counsel's ability to assist, even if counsel is physically present. The dissent rejects the idea that a partial deprivation of counsel at a critical stage or the physical presence of a silenced lawyer satisfies the Sixth Amendment, arguing that the lawyer's effective absence during the decisive testimony on Schmidt's fate means prejudice should be presumed.
Analysis:
This case significantly clarifies the narrow scope of federal habeas corpus review under AEDPA, especially in the context of the Sixth Amendment right to counsel. It underscores the high bar petitioners face in demonstrating that a state court's decision was an 'unreasonable application' of Supreme Court precedent, particularly when the Supreme Court has not addressed an identical factual scenario. The ruling reinforces the majority's interpretation that United States v. Cronic's presumed prejudice rule applies only to a 'complete' denial of counsel, emphasizing that mere limitations on counsel's active participation, even if 'constitutionally dubious,' typically require a showing of actual prejudice under Strickland v. Washington. The disagreement between the majority and dissenting opinions highlights the ongoing debate and lack of absolute clarity regarding the precise boundaries of the Sixth Amendment in novel procedural contexts, providing state courts with substantial discretion in such areas.
