Joseph L. VAN PATTEN, Petitioner-Appellant, v. Jeffrey P. ENDICOTT, Respondent-Appellee, 489 F.3d 827

PER CURIAM. After being convicted in the Wisconsin state courts upon a plea of no contest to a charge of first degree reckless homicide (with a penalty enhancement for committing the offense while using a dangerous weapon), Joseph L. Van Patten was sentenced to a term of 25 years. After exhausting his remedies in state court, Van Patten filed a petition for federal habeas relief (28 U.S.C. § 2254), which the district court denied.

On appeal, we granted the petition, holding that the state court proceeding — where his lawyer appeared via speakerphone at the critical hearing when the no contest plea was entered — was, under the circumstances, a violation of Van Patten’s right to counsel as analyzed under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Our opinion is reported at Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir.2006). After a petition for panel rehearing (and for rehearing en banc) was denied, the respondent filed a petition for certiorari.

While that petition was pending, the Supreme Court decided Carey v. Musladin, — U.S. —, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006), another case addressing a claim under § 2254. The Supreme Court then remanded this case to us for further consideration in light of its new ruling. Nothing in Musladin requires that our 2006 opinion be changed. The petitioner in Musladin claimed that his trial was unfair because spectators in the courtroom wore buttons bearing the image of the victim.

The Supreme Court held that he was not entitled to relief under § 2254 because there was no “clearly established Federal law” holding that conduct by courtroom spectators deprives a defendant of a fair trial. While the Supreme Court had previously addressed claims based on state-sponsored courtroom practices, the effect of conduct by spectators was “an open question” in the Court’s jurisprudence. Unlike Musladin, this case does not concern an open constitutional question.

The Supreme Court has long recognized a defendant’s right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings. Neither § 2254 nor Musladin limits relief to the precise factual situations addressed in the Supreme Court’s previous cases. The technology employed in taking Van Patten’s no contest plea (the use of a speakerphone) may have been novel, but the legal principle presented by the case was not. Our 2006 opinion and judgment are reinstated.