Scott E. Schmidt, Petitioner-Appellant,
Brian Foster, Warden, Respondent-Appellee.
September 6, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 2:13-CV-01150-CNC - Charles N.
Clevert, Jr., Judge.
Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner,
Sykes, Hamilton, Barrett, Scudder, and St. Eve, Circuit
Eve, Circuit Judge.
Schmidt shot and killed his estranged wife. He confessed at
the scene, but come trial he sought to mitigate his crime
with the second-degree defense of adequate provocation. The
Wisconsin trial court, in deciding 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
examination of Schmidt instead. The trial court added,
however, that Schmidt's lawyer could "not say[ ]
anything" and would "just be present" for 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.
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 remanded with instructions to grant it. We
vacated that decision, 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.
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.
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' evidence supporting the defense."
Id. (quoting Head, 648 N.W.2d at 439).
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
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 unfairly prejudice the state's case. The trial
court therefore ordered 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.
did so. His counsel filed a list of 29 witnesses with short
summaries of their anticipated testimony, a legal analysis 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 persisted. The trial court did not,
however, ask for the presentation 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 N.W.2d 550 (Wis.
2009)-confirmed that a hearing was appropriate, 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 subjective
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
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
lawyer. The state noted, though, that it did not want Schmidt
conferring with counsel about how to answer the court's
questions. 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.
in camera examination opened with the trial court
putting 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
court stopped Schmidt as he was describing his arrest. It
explained 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 couple's troubled history.
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 responded, "It's off the
record. Yeah, you can talk. But he should just be
reviewing" the offer of proof.
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 examination, 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.
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."
later, at another pretrial hearing, the parties discussed
whether Schmidt would call one of the witnesses identified 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 defense's admissibility. The court
would, though, allow Schmidt to "supplement the record
for appeal." Schmidt's lawyer did not do so.
Trial and Posttrial Proceedings
began on March 4, 2010, and lasted five days. The jury
convicted Schmidt of first-degree homicide.
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 motion 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
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.
opinion repeated that the defense "expressed a
preference for, and agreed to, an in-camera proceeding for
the defendant's oral offer of proof" and that
"[a]t no time did counsel make a request to question the
defendant." It concluded, in "view of defense
counsel's extensive argument and submissions with regard
to the adequate provocation defense, the Court finds there
was no denial of the right to counsel."
trial court sentenced Schmidt to the mandatory penalty for
first-degree homicide-life in prison. See Wis. Stat.
§§ 940.01, 939.50(3)(a), 973.014(1g).
The Court of Appeals Decision
appealed. The Court of Appeals of Wisconsin explained first
that Schmidt's case presented a "close
question" as to whether he put forth "some
evidence" of adequate provocation. Schmidt, 824
N.W.2d at 850. It noted that the state had conceded that
"Schmidt, subjectively, acted in the heat of passion
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
objectively adequate provocation. Id. at 847,
850-52. It cited also the lengthy history of hostility
between Schmidt and his estranged 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.
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.
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
further 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, however, the district
court granted a certificate of appealability. See
id. § 2253(c).
divided panel of our court reversed and remanded. Schmidt
v. Foster, 891 F.3d 302 (7th Cir. 2018). The majority
reasoned that Schmidt had a clearly established right to
counsel at critical stages, and, in this case, there was no
more important 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 process 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 Fed.Appx.
470 (7th Cir. 2018).
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 proceeding." 28 U.S.C. §§
2254(d)(1), (2). We focus here on the state court of appeals
opinion, as the last reasoned state-court decision on the
merits. Wilson v. Sellers, 138 S.Ct. 1188, 1192
(2018). The question, all agree, is whether that opinion
unreasonably applied clearly established Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1).
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 determinations." 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" application 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).
state-court decision can be a reasonable application of
Supreme Court precedent even if, in our judgment, it is an
incorrect 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." Harrington, 562 U.S. at 102. Only
when a state-court decision is "so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement" does it constitute an
unreasonable application of clearly established law.
Id. at 103; Woodall, 572 U.S. at 420. This
standard is as Congress intended: "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 constitutional claims" is
habeas relief appropriate. Dassey v. Dittmann, 877
F.3d 297, 302 (7th Cir. 2017) (en banc), cert.
denied, 138 S.Ct. 2677 (2018).
not one of those uncommon cases. In our narrow habeas review,
we need not, and do not, endorse the constitutionality of the
trial court's unusual ex parte, in
camera examination without counsel's active
participation. See, e.g., Marshall 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.
Sixth Amendment provides that in "all criminal
prosecutions, the accused shall enjoy the right … to
have the Assistance of Counsel for his defence." U.S.
Const. amend. VI. This right means more than a lawyer at
trial. See Powell v. Alabama, 287 U.S. 45, 60-66
(1932). It ensures that defendants facing incarceration will
have counsel at "all critical stages of the criminal
process." Marshall, 569 U.S. at 62 (citation
omitted); see also, e.g., Lee v. United
States, 137 S.Ct. 1958, 1964 (2017).
claim is not about the effectiveness of his lawyer, a claim
which would require him to show prejudice. See Strickland
v. Washington, 466 U.S. 668 (1984). He argues, instead,
that his lawyer's court-ordered silence during the
examination 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 Supreme 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).
invokes Cronic's first and "[m]ost
obvious" circumstance-"the complete denial of
counsel." 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 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 during a critical
stage of the trial, Geders v. United States, 425
U.S. 80 (1976) (bar on consultation during overnight recess);
Herring v. New York, 422 U.S. 853 (1975) (bar on
summation); Brooks v. Tennessee, 406 U.S. 605 (1972)
(law requiring defendant 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).
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 prosecution
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 described in a critical-stage
case. See Penson, 488 U.S. at 88 (presuming
prejudice where the defendant lacked counsel for appeal).
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." Donald, 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 'broad discretion' in their
adjudication" of them. Donald, 135 S.Ct. at
1377 (quoting Woodall, 572 U.S. at 424); accord
Yarborough, 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 completely denied counsel.
Supreme Court has not provided a concise explanation 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 "significant consequences for the
accused." Bell, 535 U.S. at 696 (citations
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 prejudice 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 legal problems or
assistance in meeting his adversary").
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 (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) (plurality)
(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); Hamilton, 368 U.S. at 53
(arraignment). Yet the Court has not confronted the
circumstance that this case presents: a deprivation of
counsel during an in camera examination, which was
conducted as a part of a broader, pretrial evidentiary
presentation. 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
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 sufficiency 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 presentation 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
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
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 examination, Schmidt cannot meet the
second part of the analysis- that he was so deprived of
counsel as to mandate the presumption of prejudice.
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
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 portion of the stage in which the trial court held the
in camera examination, Schmidt had full access to
counsel. No Supreme Court precedent suggests, much less
establishes, that such facts warrant the presumption of
the proper critical stage is the in camera
examination in isolation rather than the entire evidentiary
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 deprived him of counsel, and, to an
extent, we agree. But again: the deprivation must be
"complete" to mandate the presumption of prejudice.
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 offer of proof
Schmidt's lawyer drafted. The trial court later noted
that the "nature and detail" of the offer of proof
reflected 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 observed. 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 offer of proof, the focus
of the in camera examination. See id. To be
sure, Schmidt otherwise lacked assistance during the
examination. 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.
clearly established holding of the Supreme Court mandates
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." Morgan 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 determine whether it has recognized a
"particular point in issue" 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 "illustrate the possibility
of fairminded disagreement").
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 presumption of prejudice
applies only when "defendants have had no
assistance of counsel for any issues." 227 F.3d
at 1020-21 (emphases 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.
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 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
the Supreme Court's decisions, Ferguson comes
closest 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 counsel" and was therefore
unconstitutional. Id. at 572 (quoting
Powell, 287 U.S. at 69).
conclude that Ferguson clearly established a rule
subject to misapplication here is to read it at too high a
level of generality. 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
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 evidence, but he agreed that an in
camera examination was appropriate 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
defendant'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 ...