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Wilkerson v. Klem

June 28, 2005


On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civil Action No. 01-cv-01501) District Judge: Hon. James M. Munley.

The opinion of the court was delivered by: Stapleton, Circuit Judge


Argued December 14, 2004



In this habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254, Appellant Wilkerson claims that the state trial court wrongfully deprived him of his Sixth Amendment right to counsel. The District Court considered whether the state court's decision rejecting that claim was contrary to, or an unreasonable application of, Supreme Court precedent and concluded that it was not. We agree and will affirm.


Wilkerson was charged in a Pennsylvania court with retail theft and robbery of a motor vehicle. At a March 16, 1998, hearing, he informed the court that he wanted his current counsel to "step down," and the court allowed counsel to withdraw. App. at 42-43. It then set April 13, 1998, as Wilkerson's trial date and advised him as follows:

Now, Mr. Wilkerson, that's your new trial date. That's less than 30 days. You can't get a lawyer on April 12 and expect him to know how to handle your case the next day. You need to get a lawyer within the next several days so that that lawyer will have an opportunity to engage in discovery with the District attorney, to evaluate your case, interview witnesses, interview you, and that takes a lot of time. There isn't much time.

So we will proceed with your trial on April the 13th. You or your family has to get busy and hire a lawyer within the next several days.

I guess I ought to also tell you that if you can't afford private counsel, you have the right to the free services of the Public Defender's Office. So if you can't come up with the money, I would say by the end of this week, you'd better be going to the Public Defender then right away.

App. at 45-46.

Wilkerson appeared on April 13, 1998, without counsel for the charges to be tried that day, although an attorney from the Public Defender's Office who was representing him on another charge happened to be present. Wilkerson advised the court that his family was in the process of trying to engage a lawyer, but he had not yet heard whether they had been successful. The court decided to proceed to trial and appointed the attorney from the Public Defender's Office as stand-by counsel to assist Wilkerson in his self-representation. The court explained its decision as follows:

I made it very clear to you when we continued this case last term in March when Mr. Dils was standing by your side, that you would need new counsel.

You knew this case was coming up today. You knew you needed an attorney, and I don't know why you didn't apply for one.

We're not going to delay the system, delay justice, and inconvenience witnesses while you fool around in deciding to get an attorney or not.

It doesn't make any sense that your family is looking for a lawyer for you on one charge, and at the same time you're applying for a public defender in another case. You can afford counsel or you can't.

If you can't afford counsel, you should have gone to the Public Defender's Office for this charge as well as the other. I think you'd qualify since you're under a state prisoner sentence right now, but be that as it may, we're taking this case to trial.

App. at 52-53.

Following his conviction, Wilkerson appealed to the Superior Court of the Commonwealth of Pennsylvania, arguing inter alia that he had been denied his right to counsel. The Superior Court affirmed, concluding that Wilkerson had "forfeited" his right to counsel. In the court's view, Wilkerson's case was governed by Commonwealth v. Wentz, 421 A.2d 796 (Pa. Super. Ct. 1980), where it had held as follows:

". . . a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel."

App. at 36 (quoting Wentz, 421 A.2d at 800). While the Superior Court quoted this passage from Wentz cast in terms of "waiver," it made clear that this was a case in which the defendant had forfeited his right to counsel by his conduct and not one involving a voluntary waiver of that right.

The Supreme Court of Pennsylvania declined to review Wilkerson's case. The District Court denied him habeas relief, and we granted a certificate of appealability only on the issue of ...

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