Carlson v. Jess

526 F.3d 1018

Matthew S. CARLSON, Petitioner-Appellee, v. Cathy JESS, Respondent-Appellant.

No. 07-3428.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2008.

Decided May 19, 2008.

Robin Shellow, Urszula Tempska (argued), The Shellow Group, Milwaukee, WI, for Petitioner-Appellee.

Katherine L. Tripp (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellant.

Before KANNE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

After a one-day jury trial, Matthew Carlson was convicted of first-degree sexual assault of a child and sentenced to 55 years in a Wisconsin state prison. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the state trial court's denial of his motion to substitute counsel and for a continuance violated his Sixth Amendment right to counsel of choice and his Fourteenth Amendment right to due process. He also maintains that the state court of appeals' decision affirming the trial court's judgment was unreasonable. The district court (Judge Lynn Adelman) agreed with Carlson and granted his petition in a comprehensive opinion. Carlson v. Jess, 507 F.Supp.2d 968 (E.D.Wis.2007). The State now appeals.

Back in 1996, Carlson was convicted of one count of sexual assault of a boy under the age of 13. At that time, the complainant here, we'll call him "Gino," was 9 years old and a friend of Carlson's stepson. Upon hearing of the conviction, Gino's grandparents asked him whether Carlson had ever assaulted him. Gino denied any improper behavior on the part of Carlson.

Six years later, in 2002 when Gino was 15 years old, he alleged that Carlson sexually assaulted him in 1996 and 1998. Gino initially complained to the staff of Rawhide Boys Ranch,¹ where he then resided. Soon thereafter, the Ozaukee County² district attorney charged Carlson with several counts of sexually assaulting Gino. Carlson hired attorney Randall Kaiser to represent him. At Carlson's May 20, 2002, arraignment, the trial court set a trial date of August 27, 2002. The parties agreed that the trial would take, at most, two days to complete. Carlson remained in jail from the time of his arrest until his eventual trial.

In the weeks leading up to the trial, Carlson requested two brief continuances, one for additional preparation time and one to permit Kaiser's co-counsel to assist him at trial. The trial judge denied both requests, citing his calendar and the fact that the complainant was a juvenile. In the meantime, Carlson lost confidence in Kaiser's ability to represent him. On August 17, ten days before the scheduled start of the trial, Carlson notified Kaiser that he had hired another attorney, Robin Shellow, to replace him. Two days later, Kaiser moved to withdraw as counsel. On August 23, Carlson, with Shellow's help, moved to substitute Shellow for Kaiser as his counsel, conditioned upon an adjournment so that Shellow could prepare for trial. In support of the motion, Ms. Shellow submitted a detailed explanation of the additional investigation she wanted to conduct before trial.

The trial judge, however, did not sit during the week of August 19 and thus did not promptly address Kaiser's motion to withdraw or Carlson's motion for substitution and a continuance. On August 26, the day before the trial was scheduled to begin, the judge returned to the bench and held a hearing on the motions. There, Kaiser stated:

I am in a very tough position I think if I am not allowed to withdraw. As I said, our communication has completely broken down. We have differences of opinions, and I know they don't feel confident, he and his family. I think it's better for everyone if I withdraw.

I don't feel that the state is prejudiced by allowing me to withdraw. It's my understanding that they really only have one citizen witness. This is a case that allegedly occurred approximately six years ago and was not charged until April of this year. So I don't think Attorney Shellow or I — I don't want to speak for her, but I don't think we are requesting a long adjournment. This is the first request that Mr. Carlson has made for a new attorney.

Kaiser also explained that Carlson was not seeking to delay the proceedings unnecessarily and reminded the court that Carlson was and would remain in custody during a continuance. The prosecutor opposed Kaiser's request because Shellow "ha[d] already indicated in papers that she wouldn't be able to proceed tomorrow" and because the complainant was a child.

The trial judge conceded that "the defendant has a right to counsel," but stated:

I think here there are paramount issues. And the first issue is the orderly administration of this Court. I said last week or on the 14th that it would be months before this case got back on the trial calendar. And these late motions to withdraw, I am not inclined to grant it — in fact, I am not going to grant the motion to withdraw. This case is going to trial tomorrow. I don't see any reason why it can't go. This Court is prepared to try it.

I also am concerned that you have a young victim in this. Not as young as some the Court sees, but young. And I don't see anything in the motion papers that were filed by Attorney Shellow that is of a magnitude that causes the Court to hesitate and say this Court can't go to trial tomorrow. I am ordering it to go ahead.

Shellow then asked to be heard and stated that the case involved factual issues that Kaiser had not explored and constitutional issues that he had not researched. She explained that she wished to explore Gino's motives for making the allegation and to engage an expert regarding a number of questions, including questions raised by Gino's reporting of the assaults to Rawhide staff years after they allegedly occurred. Shellow stated that she also wished to examine possible improper police coaching and a Miranda issue. She also noted that Kaiser's failure to explore any of these matters raised issues of ineffective assistance of counsel.

The judge's only response was to ask Shellow if she was prepared to try the case tomorrow. When Shellow replied that she was not, the court stated:

Then I am not granting the motion. This case is staying on the calendar. I understand the problems, but I find that a case that's been set 90 days out, and then to come in the day before and say I want to withdraw and I want it taken off the Court's calendar, is a serious problem for administration of this Court. And I realize there are issues. But I think Mr. Carlson can get a fair trial. His attorneys have been working on this. They have been in court numerous times. And I think there are other issues that have to be factored into the analysis, and I have done that, and I am denying the request.

The next day, before the trial commenced, Carlson himself asked to address the court. He stated:

I have tried on numerous occasions to convey my concerns with Mr. Kaiser, to no avail. I have been met with argumentative comments, I have been met with the impression to take a plea bargain which I've signed several papers stating I would not, and that seems to be our whole matters....

....

... I have not received one piece of paper concerning this case since I have been incarcerated. I have not one sheet of paper about this case to look back on when I am in jail. Also, one of [Kaiser's] associates, who I will not name, when I met the first time I could swear under oath I have smelled liquor on his breath. I am not — I am not gonna mention any names, I didn't want to risk a lawsuit. And also I have talked to Mr. Kaiser several times about different witnesses that obviously he doesn't feel I need, and I have mentioned to him and so have my parents and my wife about possibly different people we could bring, prior to May 23rd or whatever that was, and I still have not heard nothing about that either.

The judge acknowledged that "there are situations where release of counsel is warranted, when there's an ethical dilemma, when there is a situation where the relationship has broken down to the point where there's no communication," but he said Carlson and Kaiser's relationship was only suffering because of "differing views of how the case is approached," and "strategic decision[s]." The judge continued:

Against [Carlson's request to substitute counsel and for a continuance] the Court has the responsibility, some countervailing responsibilities. One is to administration of this Court.... I have the victim rights obligations that I have to consider, I have to consider a fair trial for you, and I have to consider the administration of this Court's calendar.... I don't have another date that could fit a trial like this in until probably after the beginning of the year.... I also have a young victim, not the youngest as I acknowledged yesterday, who has to have this hanging out over their head. And on balance I denied the request. And I am comfortable with the request, I'm comfortable that Mr. Kaiser can represent you in a competent manner. 90 days ago this trial date was set, and the desire to have a different lawyer or these other issues should have been brought up much earlier in the proceedings.

Kaiser then addressed the judge one last time, imploring him to allow the substitution:

[W]e've had a breakdown in communication, and that is one of the factors I think to allow withdrawal of an attorney. I understand it's sort of the last minute, but he hired new counsel and I'm still of the opinion that because of the total breakdown in communication that we've had, that — and there is no taxpayer expense, this is only a one-day trial, I don't, considering the long time it took the alleged victim to report this case, I don't think a short adjournment would prejudice anyone but the Court. So I'm renewing my objection and just stating that we've had a breakdown in communication.

The court denied the motion and trial proceeded as scheduled. Gino...