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Schmidt v. Foeter

United States Court of Appeals, Seventh Circuit

December 20, 2018

Scott E. Schmidt, Petitioner-Appellant,
v.
Brian Foster, Warden, Respondent-Appellee.

          Argued September 6, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-CV-01150-CNC - Charles N. Clevert, Jr., Judge.

          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 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 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 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.

         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' 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 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.

         Schmidt 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 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 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.

         The 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.

         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 responded, "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 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.

         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 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.

         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 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.

         The 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."

         The 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).

         C. The Court of Appeals Decision

         Schmidt 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.

         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 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).

         A 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).

         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 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).

         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 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).

         A 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).

         This is 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.

         A. Right-to-Counsel Claim

         The 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).

         Schmidt's 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).

         Schmidt invokes Cronic's first and "[m]ost obvious" circumstance-"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 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).

         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 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.[3] 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.

         1. Critical Stage

         The 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").

         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 (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 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 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 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 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.

         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 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 prejudice.

         Even if 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.

         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 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.

         No 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").

         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 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.

         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 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 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).

         To 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 ...


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