Scott E. SCHMIDT, Petitioner-Appellant, v. Brian FOSTER, Warden, Respondent-Appellee., 911 F.3d 469

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. 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 , 344 Wis.2d 336, 824 N.W.2d 839, 842 (Wis. Ct. App. 2012) (citing Wis. Stat. § 939.44(1) ; State v.

Felton , 110 Wis.2d 485, 329 N.W.2d 161, 172 (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 , 255 Wis.2d 194, 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 , 318 Wis.2d 739, 767 N.W.2d 550 (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 F. App'x 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 , --- U.S. ----, 138 S.Ct. 1188, 1192, 200 L.Ed.2d 530 (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, 124 S.Ct. 2140, 158 L.Ed.2d 938 (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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; see also Carey v. Musladin , 549 U.S. 70, 75-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (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 , --- U.S. ----, 138 S.Ct. 1593, 200 L.Ed.2d 777 (2018) ; see also Panetti v. Quarterman , 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (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, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014) (emphasis omitted). Time and again, the Court has cautioned against stretching its precedent to declare state-court decisions unreasonable. Sexton v. Beaudreaux , --- U.S. ----, 138 S.Ct. 2555, 2558-60, 201 L.Ed.2d 986 (2018) (per curiam); Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 1728-29, 198 L.Ed.2d 186 (2017) (per curiam); Woods v.

Etherton , --- U.S. ----, 136 S.Ct. 1149, 1152, 194 L.Ed.2d 333 (2016) (per curiam); Woods v. Donald , --- U.S. ----, 135 S.Ct. 1372, 1376-77, 191 L.Ed.2d 464 (2015) (per curiam); Lopez v. Smith , --- U.S. ----, 135 S.Ct. 1, 3-4, 190 L.Ed.2d 1 (2014) (per curiam); Nevada v. Jackson , 569 U.S. 505, 512, 133 S.Ct. 1990, 186 L.Ed.2d 62 (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 , --- U.S. ----, 138 S.Ct. 554, 199 L.Ed.2d 435 (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, 134 S.Ct. 1697. 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, 131 S.Ct. 770.

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, 131 S.Ct. 770 ; Woodall , 572 U.S. at 420, 134 S.Ct. 1697. This standard is as Congress intended: "difficult to meet." Harrington , 562 U.S. at 102, 131 S.Ct. 770 ; 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 , --- U.S. ----, 138 S.Ct. 2677, 201 L.Ed.2d 1072 (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, 133 S.Ct. 1446, 185 L.Ed.2d 540 (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, 127 S.Ct. 649. 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, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

It ensures that defendants facing incarceration will have counsel at "all critical stages of the criminal process." Marshall , 569 U.S. at 62, 133 S.Ct. 1446 (citation omitted); see also, e.g. , Lee v. United States , --- U.S. ----, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2039, 80 L.Ed.2d 657 (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, 104 S.Ct. 2039 ; see also, e.g. , Bell v. Cone , 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (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." Cronic , 466 U.S. at 659, 104 S.Ct. 2039. 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, 104 S.Ct. 2039.

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, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam) (no counsel present at entry of plea); Hamilton v. Alabama , 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (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, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (bar on consultation during overnight recess); Herring v. New York , 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (bar on summation); Brooks v. Tennessee , 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (law requiring defendant to testify first at trial or not at all); Ferguson v. Georgia , 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (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, 104 S.Ct. 2039 ; Wright v. Van Patten , 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) ; Roe v. Flores-Ortega , 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ; see also Penson v. Ohio , 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (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, 125 S.Ct. 551, 160 L.Ed.2d 565 (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, 120 S.Ct. 1029 ; see also Mickens v. Taylor , 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (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, 109 S.Ct. 346 (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, 134 S.Ct. 1697 ); see also Van Patten , 552 U.S. at 125, 128 S.Ct. 743. State courts therefore "enjoy 'broad discretion' in their adjudication" of them. Donald , 135 S.Ct. at 1377 (quoting Woodall , 572 U.S. at 424, 134 S.Ct. 1697 ); accord Yarborough , 541 U.S. at 664, 124 S.Ct. 2140.

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, 122 S.Ct. 1843 (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, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; see also Rothgery v. Gillespie Cty., Tex. , 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (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, 93 S.Ct. 2568, 37 L.Ed.2d 619 (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, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (postindictment interrogation); Iowa v. Tovar , 541 U.S. 77, 87, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (plea hearing); Penson , 488 U.S. at 88, 109 S.Ct. 346 (appeal); Estelle v.

Smith , 451 U.S. 454, 470-71, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (court-ordered psychiatric evaluation); Coleman v. Alabama , 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (plurality) (preliminary hearing); Wade , 388 U.S. at 236-37, 87 S.Ct. 1926 (postindictment lineup); Mempa v. Rhay , 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (sentencing); White , 373 U.S. at 59-60, 83 S.Ct. 1050 (plea entry); Hamilton , 368 U.S. at 53, 82 S.Ct. 157 (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, 120 S.Ct. 1029 (emphasis added) (citing Cronic , 466 U.S. at 659, 104 S.Ct. 2039 ; Penson , 488 U.S. at 88, 109 S.Ct. 346 ; Smith v.

Robbins , 528 U.S. 259, 286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ); see also Glebe v. Frost , --- U.S. ----, 135 S.Ct. 429, 431, 190 L.Ed.2d 317 (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, 128 S.Ct. 743 ; 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, 109 S.Ct. 346 ; Cronic , 466 U.S. at 659, 104 S.Ct. 2039. 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, 133 S.Ct. 1446 (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, 95 S.Ct. 2550 ; Ferguson , 365 U.S. at 571, 81 S.Ct. 756. 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, 134 S.Ct. 1697 (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, 120 S.Ct. 1029 ).

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, 101 S.Ct. 1866. 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, 101 S.Ct. 1866. 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.

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, 104 S.Ct. 2039. Specifically, Ferguson involved a Georgia law that prohibited a defendant from testifying in his own defense. 365 U.S. at 570-71, 81 S.Ct. 756. 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, 81 S.Ct. 756 (quoting Powell , 287 U.S. at 69, 53 S.Ct. 55 ). 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 that he could "overlook [ ] important" exculpatory facts. Ferguson , 365 U.S. at 594-96, 81 S.Ct. 756 (emphases added) (citations and quotations omitted). With none of those worries pressing here, it is hardly "obvious" that Ferguson must control.

Long , 874 F.3d at 549. One may still argue that where state action (as opposed to a lawyer's neglect) causes a less-than-complete deprivation during a critical stage, prejudice should still be presumed.

A loose reading of Cronic , which noted that the Court has presumed prejudice when counsel was "prevented from assisting the accused during a critical stage," could support that view. 466 U.S. at 659 n.25, 104 S.Ct. 2039 (citing, among other cases, Geders , 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 ; Herring , 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 ; Brooks , 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 ; Ferguson , 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 ); see also Strickland , 466 U.S. at 692, 104 S.Ct. 2052 (citing Cronic for the proposition that "prejudice is presumed ... [after] various kinds of state interference with counsel assistance").

But that view would be mistaken, at least as far as clearly established law is concerned. The Court's decisions, Cronic included, speak of the "complete denial of counsel" at a critical stage. Van Patten , 552 U.S. at 125, 128 S.Ct. 743 (quoting Cronic , 466 U.S. at 659, 104 S.Ct. 2039 ); Bell , 535 U.S. at 696, 122 S.Ct. 1843 ; Flores-Ortega , 528 U.S. at 483, 120 S.Ct. 1029. There is no clearly established lesser standard for state-action denials. Glebe makes that clear. Glebe , like Herring , involved a court-ordered restriction on summation.

Cronic described Herring as a critical-stage case (though Herring , like Ferguson , did not use the phrase), and Herring held that a bar on all trial summation violated the right to counsel. Cronic , 466 U.S. at 659 n.25, 104 S.Ct. 2039 ; Herring , 422 U.S. at 865, 95 S.Ct. 2550. In Glebe , the Court considered whether a court-ordered partial bar on trial summation warranted the presumption of prejudice on habeas review.

The Court said it did not, because its precedent, namely Herring , establishes only that the "complete denial of summation" requires the presumption. 135 S.Ct. at 431 (emphasis in original) (citing Herring , 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 ). Even though a court order caused the deprivation, Glebe held the petitioner's claim to the prevailing standard that the Court's precedents establish-that of a "complete denial." Id. So too must we hold Schmidt's claim on habeas review. The dissent sees the Supreme Court's jurisprudence differently.

It focuses on the fact that an accused is entitled to effective counsel for every part of a critical stage. But the existence of that right does not mean courts must presume prejudice if it is infringed. The Court ruled out that possibility by requiring a "complete denial of counsel during a critical stage." Flores-Ortega , 528 U.S. at 483, 120 S.Ct. 1029 (citing Cronic , 466 U.S. at 659, 104 S.Ct. 2039 ). The dissent also reads the Supreme Court's decisions to mean that courts may presume prejudice when the state interferes with the assistance of counsel.

To get to that general proposition, the dissent connects Powell (which concerned the last-minute appointment of counsel before trial), with Holloway v. Arkansas , 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (which concerned a lawyer's conflict of interests), with Brooks , Herring , and Geders (which, as noted, concerned the sequencing of a defendant's testimony, summation, and an overnight recess, respectively), and with Ferguson . This reading conflates decisions that the Court, starting in Cronic , has thought distinct for right-to-counsel purposes.

Cronic , 466 U.S. at 659-61 & nn.25, 28, 104 S.Ct. 2039 (citing Brooks , Herring , Geders , and Ferguson as critical-stage cases and Powell and Holloway as cases in which "surrounding circumstances made it so unlikely that any lawyer could provide effective assistance"); see also Bell , 535 U.S. at 695-96, 122 S.Ct. 1843. The approach is also self-defeating. If we must take several dissimilar decisions and reduce them to blanket principles in order to arrive at a general proposition applicable here, the proposition is "far too abstract to establish clearly the specific rule" Schmidt needs. Lopez , 135 S.Ct. at 4.

The state-court decision was a reasonable application of Supreme Court law, namely the complete-denial requirement for the presumption of prejudice in critical-stage cases. We could end there, but we add another reason the state-court decision has support. Even eschewing the complete-denial requirement-and venturing beyond clearly established law -a fair-minded jurist could conclude that this case's facts were not "so likely to prejudice the accused" as to warrant the presumption of prejudice upon which Schmidt's case depends. Cronic , 466 U.S. at 658, 104 S.Ct. 2039.

As noted, Wisconsin's adequate-provocation defense has "both subjective and objective components." Schmidt , 824 N.W.2d at 842. The primary purpose of the in camera examination was to assess Schmidt's subjective belief of provocation. For that reason, virtually all the trial court's questions were aimed at Schmidt's mental state at the time of the shooting.

It inquired: "[W]hat was in your mind at that time?"; "[H]ow things entered into your mind at the time?"; "How did you contemplate these things on the 17th?" It wanted to know "what [Schmidt] contemplated at the time," and what "weighed on [his] mind." If in responding to these questions Schmidt had failed to convince the trial court of his subjective belief of provocation, perhaps his lack of full access to counsel while facing these questions would suggest prejudice. But that is not what happened.

The trial court ruled that, based on Schmidt's proffer and his testimony, Schmidt lacked facts "that would drive a reasonable person to kill his spouse." It did not decide whether Schmidt lacked adequate subjective evidence but only ruled on the objective prong. The state then conceded on appeal that Schmidt had satisfied the subjective prong. Schmidt , 824 N.W.2d at 844 n.5, 850 n.8. The court of appeals, in turn, agreed with the trial court, ruling that Schmidt's defense fell short only for want of objectively adequate provocation evidence. Id. at 852.

Schmidt did not have full use of counsel during the examination, but a fair-minded jurist could find that circumstance not presumptively prejudicial. The trial court and court of appeals had plenty before them in deciding whether Schmidt's evidence sufficed: Schmidt's motion, a brief arguing the defense's legal support, a written offer of proof setting forth the defense's factual support, a

summary of 29 witnesses' testimony, counsel's oral argument, and 35 transcript pages of Schmidt's testimony. Schmidt has not cited one fact or piece of evidence that he could have raised during the examination if only he had counsel. He, instead, argues that his testimony was filled with "trivial, irrelevant[ ] matters." That is hard to believe, because he prevailed on the subjective prong. But even if the argument held water, it is unclear how superfluous testimony would likely prejudice him.

The state courts needed to look only for "some evidence" of adequate provocation, and we cannot presume that they are prone to distraction or obfuscation by a poorly performing witness. There are therefore grounds to think that the deprivation here did not render "the proceeding presumptively unreliable." Flores-Ortega , 528 U.S. at 484, 120 S.Ct. 1029. At the least, "[n]o precedent of th[e] Court clearly forecloses that view." Etherton , 136 S.Ct. at 1152. It is true, as the dissent points out, that the judges who have rejected Schmidt's right-to-counsel claim have had different reasons for doing so.

Those judges have decided that Schmidt had adequate counsel (the state courts), that the examination was not a critical stage (the state court of appeals), that the examination was too incomparable to anything the Supreme Court has considered (the district court), that the examination was not a critical stage under clearly established law (the panel dissent), and that Schmidt was not completely denied counsel under clearly established law (our majority). The dissent thinks this divergence of thought suggests that denying Schmidt relief is an error. The opposite is true.

That so many judges see Schmidt's claim differently underscores that there is room for fair-minded disagreement about how to view and resolve Schmidt's claim. E.g. , Harrington , 562 U.S. at 103, 131 S.Ct. 770. That room exists because the Supreme Court has never addressed a case like this. Its decisions, instead, emphasize the limited reach of right-to-counsel claims that presume prejudice, especially when considered on habeas review. See Donald , 135 S.Ct. at 1377 ; Van Patten , 552 U.S. at 125, 128 S.Ct. 743. Without clearly established law mandating relief, we cannot grant it under AEDPA. B.

Due Process Claim Schmidt also raises a due process claim. He argues on appeal that the trial court's "inquisitorial" (as opposed to adversarial) procedure for resolving the admissibility of his only defense "was so arbitrary" that it violated his right to present a defense. Schmidt admits that this is a "novel" argument. He submits, however, that novelty does not doom his claim-he argues that the claim should enjoy de novo review because the state court of appeals did not address it. The warden argues that Schmidt has procedurally defaulted and waived this claim. There is another problem worth addressing first.

In its order denying Schmidt's petition, the district court certified the following for appeal: Schmidt's argument that the state court violated his right to present a defense when it ruled he had not met his burden on the state law affirmative defense of adequate provocation. That is not the argument Schmidt now advances. To be sure, the argument he now advances is difficult to pin down.

His opening brief focused on the arbitrariness of the examination's procedure; on reply he submits that his perhaps "esoteric" claim is "not [focused on] the process per se or the result per se" but the "arbitrariness , which suffused" both. At any rate, the challenge is not one to the trial court's evidentiary ruling vis-à-vis his right to present a defense. "When a petitioner's case is subject to § 2253(c)," as this case is, "non-certified claims are not properly before this court." Bolton v. Akpore , 730 F.3d 685, 698 (7th Cir. 2013).

We have, moreover, "repeatedly reminded habeas corpus petitioners, especially when represented by counsel, to request permission before arguing non-certified claims." Welch v. Hepp , 793 F.3d 734, 737-38 (7th Cir. 2015) (collecting cases). That much aside, a "defect in a certificate concerning one claim does not deprive us of jurisdiction over that claim." Id. (citing Gonzalez v. Thaler , 565 U.S. 134, 142, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ). Looking beyond the certificate-of-appealability problem, we agree with the warden that the due process claim is procedurally defaulted and waived.

A habeas petitioner may not raise a federal claim that he has not exhausted in state court. 28 U.S.C. § 2254(b)(1)(A). He must instead fairly present his federal claim to the state courts so that they have a "fair opportunity" to consider and, if needed, correct the constitutional problem. Picard v. Connor , 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

We have laid out four factors to determine whether a petitioner has defaulted a claim: 1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation. Brown , 764 F.3d at 796 (quoting Ellsworth v. Levenhagen , 248 F.3d 634, 639 (7th Cir. 2001) ).

These factors are not applied mechanically. The "bottom line" is whether "in concrete, practical terms, ... the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis." Kurzawa v. Jordan , 146 F.3d 435, 442 (7th Cir. 1998) (quoting Verdin v. O'Leary , 972 F.2d 1467, 1476 (7th Cir. 1992) ). The court of appeals could not have been so alerted here. Schmidt concedes his claim is "novel" in the law. It is neither in the mainstream nor evocative of a specific constitutional right. True, Schmidt did cite Chambers v.

Mississippi , 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and related cases to the state court of appeals. That, however, was not enough to flag to the state court the claim he now brings. Chambers did not deal with "a defendant's ability to present an affirmative defense"-which adequate provocation is under Wisconsin law-nor has Chambers been understood to apply in that context. Gilmore v. Taylor , 508 U.S. 333, 343, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) ; see also Kubsch v. Neal , 838 F.3d 845, 858 (7th Cir. 2016) (en banc).

We afford relatively little leeway to habeas petitioners who try to reformulate due process arguments. Chambers v. McCaughtry , 264 F.3d 732, 738 (7th Cir. 2001) (citing Kurzawa , 146 F.3d at 443 ).

Schmidt's claim before the state court of appeals was that a "defendant's due process right to a fair trial renders it incumbent upon a trial court to err on the side of admitting evidence of a mitigation defense." That is a far cry from what he argues now, namely, "the trial court's inquisitorial procedure ... was so arbitrary that it violated Schmidt's constitutional right to present a defense." These two claims are not variations of the same theory, see, e.g. , McGee v. Bartow , 593 F.3d 556, 566 (7th Cir. 2010) ; they are different in kind. Schmidt points to no cause, prejudice, or miscarriage of justice.

See Coleman v. Thompson , 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). His due process claim is procedurally defaulted. It is also waived. Schmidt's argument at the district court was a straightforward one under Chambers v. Mississippi , challenging the trial court's "ruling" and "exclusion" of his defense. He did not, as he does now, challenge the ex parte , in camera examination as itself violative of due process. III.

Conclusion Nothing we have said should be mistaken as belief that the ex parte , in camera examination of Schmidt, held without his counsel's active participation and regarding his principal defense, was in fact constitutional. A pillar of the Sixth Amendment is the right to unhampered counsel; the aim of the Sixth Amendment is to protect the promise of a fair trial tested by adversaries. Trial courts must promote access to counsel and guard the adversarial process while it runs its course.

These principles hold even when-especially when-courts meet uncharted waters filled with risk for an accused facing life in prison. Applied here, trial courts should not opt to hold ex parte hearings and silence defense counsel over other, less severe alternatives without exceedingly good reasons. Even then, trial courts must, if necessary, obtain a knowing and voluntary right-to-counsel waiver from the accused for purposes of the hearing. These, however, are our admonitions. They are not clearly established Supreme Court precedent dictating habeas relief in this case. No such precedent exists.

For that reason, we AFFIRM the district court's judgment. The state trial court violated Schmidt's right to counsel. The judge was questioning the accused on the merits of the case. Yet the judge ordered his lawyer not to participate in the hearing. This constitutional violation was clear even under the demanding standard for federal habeas corpus relief in 28 U.S.C. § 2254(d)(1). The accused in a criminal case is entitled to the assistance of counsel in any "critical stage" of the prosecution, a category that applies broadly. E.g., Bell v.

Cone , 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (describing a "critical stage" as "a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused"). The Supreme Court's critical-stage cases show beyond reasonable debate that the judge's interrogation of Schmidt about his mitigation defense was a critical stage. By commanding the lawyer to stay silent while the judge interrogated his client, the judge violated the right to counsel that is a foundation of our system of criminal justice.

Denying counsel at such a critical stage requires relief without separate proof of prejudice from the denial. E.g., Bell v. Cone , 535 U.S. at 695-96, 122 S.Ct. 1843 ; United States v. Cronic , 466 U.S. 648, 658-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The majority tries not to decide the critical-stage issue and then denies habeas relief on the new theory that the state court's denial of counsel was not quite "complete." The theory does not hold up against the Supreme Court's right-to-counsel cases, which show that a "complete" denial is sufficient to presume prejudice, but it's not necessary .

The majority, not the Supreme Court, has introduced here the notion that only a "complete" denial of counsel requires a presumption of prejudice. But see Cronic , 466 U.S. at 659 n.25, 104 S.Ct. 2039 ("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 of the proceeding .") (collecting cases discussed below) (emphases added).

If the judge had simply said that he wanted to hear what the accused had to say without any counsel even present, I could not have imagined, at least before this case, that any court in the United States would find such interrogation acceptable without a valid waiver of counsel by Schmidt himself. The only difference here is that Schmidt's lawyer was physically present in the room, but the judge might as well have gagged him: he ordered the lawyer not to "participate" in this critical stage of the prosecution. I don't see a constitutional difference between an absent lawyer and a silenced lawyer.

The majority's own discomfort with the state court's extraordinary procedure shines through from beginning to end: "constitutionally dubious," "we discourage the measure," "we ... do not endorse the constitutionality of the trial court's unusual ... examination," "these ... are our admonitions." That discomfort is fully justified. Readers will notice, in addition to the majority's discomfort, that the theories to justify denying relief to Schmidt kept shifting.

The state trial court concluded that Schmidt was not denied counsel at the ex parte hearing because his counsel submitted the written offer of proof, made an oral argument, and conferred with Schmidt during the brief recess for the judge's telephone call. That was wrong because Schmidt's testimony was itself a critical stage. Even if one thinks of the entire pretrial proceeding as the critical stage, Schmidt was entitled to counsel for all of the critical stage, not just part of it.

The state appellate court found that the ex parte hearing was not a critical stage at all, but "merely a supplementary proceeding conducted for his benefit," so that Schmidt was not entitled to counsel at all. State v. Schmidt , 2012 WI App 113, ¶¶ 46-48, 344 Wis.2d 336, 362-63, 824 N.W.2d 839, 852-53. That was wrong because the hearing so easily satisfied the Supreme Court's criteria for a critical stage: the accused confronted the state, and his interests were at greater risk without counsel. E.g., United States v. Wade , 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

The federal district court focused on the unique ex parte procedure here, concluding briefly that habeas relief should be denied because the Supreme Court has not yet confronted an identical situation of silenced counsel in an in camera hearing. Schmidt v. Pollard , No. 13-CV-1150, 2017 WL 1051121, at *11 (E.D. Wis. Mar. 20, 2017). That was more understandable but wrong because § 2254(d)(1) does not insist on such a close fit where the violation of rights is so clear. E.g., Panetti v. Quarterman , 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

The panel dissent focused on the absence of the prosecutor, reasoning that the Supreme Court's critical-stage cases did not require state courts to treat Schmidt's testimony as a critical stage. Schmidt v. Foster , 891 F.3d 302, 322 (7th Cir. 2018) (Barrett, J., dissenting). That was wrong because the accused was still facing the power of the state (in the person of the judge) during the prosecution, and his interests were very much at risk, especially without counsel.

The en banc majority offers yet another theory: assuming that Schmidt's testimony was a critical stage, the denial of counsel was not "complete" and did not prejudice him, or at least so the state courts might reasonably have concluded. Cf. Wilson v. Sellers , --- U.S. ----, 138 S.Ct. 1188, 1191-92, 200 L.Ed.2d 530 (2018) (federal habeas review should ordinarily focus on state courts' stated reasons rather than those that might be imagined). The majority's new theory requires it to embrace at least one of two mistaken propositions.

The first is that Supreme Court precedents allow state courts to deprive a defendant of counsel for part of a critical stage of the prosecution. But see Ferguson v. Georgia , 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). The second is that Supreme Court precedents allow state courts to silence a lawyer in a critical stage as long as the lawyer is physically present in the room. But see Cronic , 466 U.S. at 659 n.25, 104 S.Ct. 2039 (collecting the relevant cases). Both propositions are contrary to Supreme Court precedent. It is widely recognized that the Supreme Court has recently been using

summary reversals of decisions granting habeas relief to push lower federal courts toward faithful application of the demanding standard in 28 U.S.C. § 2254(d)(1). In this case, the majority has over-corrected. It denies habeas relief in the face of a blatant violation of the right to counsel. It does so by suggesting immaterial distinctions that the Supreme Court itself has refused to draw in its right-to-counsel decisions. We should grant a writ of habeas corpus to allow petitioner Schmidt a fair chance to show that he was guilty of second-degree murder rather than first-degree murder. I respectfully dissent.

I. The Facts Schmidt's testimony in the ex parte , in camera hearing addressed the only contested issue in his case. He admitted shooting his wife while he was still standing over her holding a smoking gun. He faced a mandatory life sentence for first-degree murder. The only way he might have avoided a life sentence was to show that he acted under "adequate provocation," which could have mitigated the crime to second-degree murder. See Wis. Stat. §§ 939.44, 940.01(2)(a). The judge decided to evaluate the proposed defense before trial.

The judge wanted to see if Schmidt could satisfy the modest "some evidence" standard under state law for submitting the defense to the trial jury. See State v. Schmidt , 2012 WI App 113, ¶¶ 8-11, 344 Wis.2d 336, 343-44, 824 N.W.2d 839, 843. We know that Schmidt's testimony was critical for the judge's pretrial decision. The judge had already reviewed a written submission from Schmidt's counsel and had heard argument from both the defense lawyer and the prosecutor. Those submissions had not convinced the judge either way. Before making a decision, the judge wanted to hear directly from Schmidt himself.

The majority places great, perhaps even decisive, importance on the brief recess late during Schmidt's testimony during the ex parte hearing. The recess came as a surprise to everyone except the judge, who announced that he needed to make a telephone call. When Schmidt's lawyer asked the judge for permission merely to talk with his client-a phrase that deserves emphasis: merely to talk with his client during a recess-the judge told the lawyer he could only review with Schmidt the written offer of proof summarizing the intended defense.

This limited opportunity for a brief talk with counsel was not enough to satisfy the Sixth Amendment "in any substantial sense," and to conclude otherwise "would simply be to ignore actualities." Powell v. Alabama , 287 U.S. 45, 58, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ; see also Geders v. United States , 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (court violated right to counsel by preventing counsel from conferring with client during overnight trial recess).

At no point during the in camera examination was Schmidt's counsel allowed to question him directly to focus attention on the key facts or to guide him toward meeting his burden of production for his defense in mitigation. II. Denial of Schmidt's Right to Counsel The Supreme Court has taught that it is supposed to be difficult for a habeas petitioner to satisfy the standard of § 2254(d)(1). Schmidt must show that the state courts not only erred but unreasonably applied controlling Supreme Court precedent. Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Since the 1996 amendment of § 2254(d), habeas corpus relief is reserved for rare cases in which state courts have strayed from clearly established federal law. This case meets that standard.

Part II-A explains why, under controlling Supreme Court precedent, Schmidt's testimony was a critical stage of the prosecution.

Part II-B explains the principal mistakes in the majority's reasoning, which seeks to excuse the state court's denial of counsel in a critical stage on the theories that a state court may deny the accused counsel for part of a critical stage and/or that silencing the lawyer by court order during the critical hearing was allowed because it was not a "complete" denial of counsel as long as the lawyer was physically present. A.

Critical Stage The Sixth Amendment guarantees that in "all criminal prosecutions, the accused shall enjoy the right" to "have the Assistance of Counsel for his defence." The Supreme Court has long recognized that the right applies not only at trial but also at all "critical stages" of the adversary process. E.g., Powell v. Alabama , 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ; Coleman v. Alabama , 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (plurality opinion); Hamilton v. Alabama , 368 U.S. 52, 53-55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) ; United States v.

Wade , 388 U.S. 218, 227-28, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Rothgery v. Gillespie County , 554 U.S. 191, 212-13 & n.16, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). The majority tries not to base its denial of habeas relief on the absence of a critical stage. The majority questions whether this hearing was a critical stage but in the end assumes without deciding that it was. Still, the critical-stage issue must be addressed here. The majority's ultimate conclusion about a less than "complete" denial of counsel depends on its views on the critical-stage issue.

The judge's ex parte , in camera interrogation of the accused on the merits of his case was certainly a critical stage under the Court's Sixth Amendment right-to-counsel decisions. The majority complains that the Supreme Court has not provided one single definition of a critical stage. The slightly different phrasing in different cases does not reflect substantive uncertainty about the broad and inclusive standard. In Bell v.

Cone , the Court concisely said that a critical stage is "a step of a criminal prosecution, such as arraignment, that held significant consequences for the accused." 535 U.S. at 695-96, 122 S.Ct. 1843.

In Wade , the Court explained that a court must "scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance at the trial itself," and the court must analyze "whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." 388 U.S. at 227, 87 S.Ct. 1926. And in United States v.

Ash , the Court said we must "determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary." 413 U.S. 300, 313, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). However the standard is phrased, the judge's interrogation of the accused easily satisfies it. More important than the particular phrasing of the standard are the many Supreme Court decisions actually applying the standard. The sheer number and range of these cases, discussed below, show that the right to counsel at a critical stage is not narrow and fact-bound.

It's not surprising that the Supreme Court has not considered an ex parte , in camera hearing on a substantive issue quite like this one. Virtually all judges in American courts understand that they simply may not do what this judge did.

This hearing was an extraordinary, apparently unprecedented, departure from the most basic standards of criminal procedure in our system of criminal justice: "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." United States v. Cronic , 466 U.S. 648, 655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), quoting Herring v. New York , 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).

By questioning the accused directly, the trial judge here improvised a procedure that abandoned that "very premise of our adversary system of criminal justice." Then he prohibited defense counsel from participating.

This hearing thus violated Schmidt's Sixth Amendment right to the assistance of counsel, which "has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments." Herring , 422 U.S. at 857, 95 S.Ct. 2550, quoted in Cronic , 466 U.S. at 656 n.15, 104 S.Ct. 2039.

In any event, the Supreme Court has explained that 28 U.S.C. § 2254(d)(1) does not require "federal courts to wait for some nearly identical factual pattern" before granting relief. Panetti v. Quarterman , 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), quoting Carey v. Musladin , 549 U.S. 70, 81, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (Kennedy, J., concurring in judgment); see also Williams v. Taylor , 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that state courts can unreasonably apply clearly established federal law to facts the Supreme Court has not considered).

"Nor does [ § 2254(d)(1) ] prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts 'different from those of the case in which the principle was announced.' " Panetti , 551 U.S. at 953, 127 S.Ct. 2842, quoting Lockyer v. Andrade , 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). What matters is the extent of guidance provided by relevant Supreme Court precedents. Here that guidance is extensive.

The Supreme Court has treated as a critical stage every stage of the criminal process between arraignment and appeal that either addresses a substantive issue or risks loss of a procedural right. Critical stages include: a preliminary hearing at which defendant could cross-examine witnesses and otherwise test the evidence against him; arraignments at which defenses must be asserted; entry of a plea; pretrial identification through an in-person line-up; pretrial interrogation by a government informant; sentencing hearings; and deferred sentencing hearings that revoke probation. See Coleman v.

Alabama , 399 U.S. at 9, 90 S.Ct. 1999 (plurality); id. at 11, 90 S.Ct. 1999 (Black, J., concurring) (preliminary hearing where defendant could test evidence to avoid indictment and build record for trial); Hamilton v. Alabama , 368 U.S. at 54, 82 S.Ct. 157 (arraignment where defenses could be "irretrievably lost, if not then and there asserted"); White v. Maryland , 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (entry of plea); Moore v. Michigan , 355 U.S. 155, 156, 159, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) (entry of plea); United States v.

Wade , 388 U.S. at 236-37, 87 S.Ct. 1926 (pretrial in-person identification); Massiah v. United States , 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (pretrial interrogation); Townsend v. Burke , 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (sentencing); Mempa v. Rhay , 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (deferred sentencing and revocation of probation). The Court has explained its decisions by focusing on the consequences of the particular stage, and in particular on consequences for the defendant's ability to receive a fair trial.

See, e.g., Wade , 388 U.S. at 227, 87 S.Ct. 1926. Looking both at what the Supreme Court has done and at what it has said shows beyond reasonable dispute that testimony on a contested substantive issue is a critical stage of the proceedings. The Court has repeatedly found that pretrial stages were critical as long as the accused risked serious consequences affecting the fairness of the trial.

In the face of the extensive body of case law, the majority has not identified any Supreme Court case even suggesting, let alone holding, that a hearing comparable to the one in this case was not a critical stage, or offered a plausible theory for saying it was not. The ex parte , in camera hearing certainly had the potential to prejudice Schmidt's defense. The Sixth Amendment analysis focuses on whether there is a potential for prejudice given what or whom the uncounseled defendant must confront and what counsel could do later to fix the defendant's mistakes.

E.g., Ash , 413 U.S. at 313, 317, 93 S.Ct. 2568 ; Coleman , 399 U.S. at 7, 90 S.Ct. 1999 (plurality); id. at 11, 90 S.Ct. 1999 (Black, J., concurring); Wade , 388 U.S. at 227, 87 S.Ct. 1926. In this case, Schmidt was asked to show before trial that he could meet the burden of production to go forward at trial with his only defense in mitigation. No stage was more critical. What happened in the judge's chambers settled Schmidt's fate. The risks for Schmidt were evident.

Without assistance of counsel, he faced the risks that the judge might lose sight of the elements of adequate provocation or might fail to separate the wheat from the extensive chaff in Schmidt's rambling answers. There was also a risk that Schmidt would help the judge, perhaps unconsciously, convert the hearing into a mini-trial on the ultimate merits of the defense rather than a debate about only the burden of production. If Schmidt had met the burden of production-and only that burden-he would have had the right to present his evidence and to argue his defense to the jury.

The trial judge's oral ruling suggests that this risk might have been realized here: "The Court finds that the circumstances that led to the death of Kelly Wing did not involve a provocation and it was not an adequate provocation and denies the motion." That conclusion sounds a lot more like a decision on the ultimate merits of the defense than a decision on the burden of production. In addition, Schmidt's counsel could not fix later the harm done by Schmidt's rambling answers. The judge, having silenced counsel in the ex parte hearing, rejected the defense shortly after the hearing ended.

When counsel tried to revisit the issue shortly before trial, the judge refused, saying he had already made his decision. Because counsel could not later undo the harm to Schmidt, the risk of prejudice at the evidentiary hearing affected his trial. Finally, there should be no doubt that Schmidt could have benefited from his attorney's help at the hearing. In Ferguson v. Georgia , 365 U.S. 570, 594-96, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), the Supreme Court explained the need for counsel in a context very close to this case.

At that time, Georgia prohibited the accused from testifying in his own defense, but state law allowed the accused to make an unsworn statement to the jury. In making such a statement, however, the accused ordinarily had to do so without questioning by his counsel to guide him. The Supreme Court held in Ferguson that the accused had a right to have his lawyer question him to help elicit his statement.

In explaining this conclusion, the Court quoted Chief Justice Cooley, the nineteenth-century jurist from Michigan, in a lengthy passage that recognizes how essential a lawyer's help can be, and that fits Schmidt's case well: But to hold that the moment the defendant is placed upon the stand he shall be debarred of all assistance from his counsel, and left to go through his statement as his fears or his embarrassment may enable him, in the face of the consequences which may follow from imperfect or unsatisfactory explanation, would in our opinion be to make, what the statute designed as an important privilege to the accused, a trap into which none but the most cool and self-possessed could place himself with much prospect of coming out unharmed .

An innocent man, charged with a heinous offence, and against whom evidence of guilt has been given, is much more likely to be overwhelmed by his situation, and embarrassed, when called upon for explanation, than the offender, who is hardened in guilt; and if he is unlearned, unaccustomed to speak in public assemblies, or to put together his thoughts in consecutive order any where, it will not be surprising if his explanation is incoherent, or if it overlooks important circumstances. 365 U.S. at 595-96, 81 S.Ct. 756 (emphases added), quoting Annis v.

People , 13 Mich. 511, 519-20 (1865) (reversing conviction where trial judge had not allowed defense counsel to remind defendant he had omitted a material fact from his statement). Schmidt was not innocent, but the danger that Ferguson described came to pass here. Without the guidance of counsel's questioning, Schmidt provided a rambling and disjointed narrative, much like the defendants in Ferguson and Annis .

Even without the assistance of counsel, Schmidt's account of the circumstances came close to supporting his defense in mitigation. (The state appellate court said that was a "close question.") The "Assistance of Counsel for his defence" could have helped Schmidt organize the facts, present a coherent and legally relevant response, and meet the burden of production. Without counsel acting in that role at this critical stage, "a serious risk of injustice infects the trial itself." Cronic , 466 U.S. at 656, 104 S.Ct. 2039, quoting Cuyler v. Sullivan , 446 U.S. 335, 343, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The majority, however, struggles with the critical-stage issue, unsure whether it should focus on the entire pretrial evaluation of Schmidt's mitigation defense or on only Schmidt's interrogation by the judge. Precedent and common sense show that both are properly considered critical stages for purposes of the Sixth Amendment. In terms of precedent, for example, Ferguson shows that when the accused tells the trier of fact his story, that's a critical stage by itself .

Denying assistance of counsel for just that part of the trial required reversal, though counsel was present and active in defending during the rest of the trial. See also, e.g., Herring , 422 U.S. at 857, 95 S.Ct. 2550 (closing argument was critical stage). In terms of common sense, consider the alternative view adopted by the state appellate court, that Schmidt's testimony was not itself a critical stage. If that were correct, then the judge could have excluded Schmidt's lawyer entirely without violating the right to counsel.

Yet in light of the Supreme Court's many decades of right-to-counsel decisions, it is hard to imagine a more clear-cut example of an unconstitutional denial of counsel. Schmidt was entitled to the assistance of counsel both while he was testifying and throughout the pretrial proceeding, just as he was throughout the prosecution.

On the other side of the coin, neither the Wisconsin appellate court, the state's lawyers, nor the majority has offered a theory for treating Schmidt's testimony as anything other than a critical stage that can be reconciled with the Supreme Court's expansive treatment of the right to counsel. B. The Violation of Schmidt's Right to Counsel The judge's order silencing Schmidt's lawyer during the interrogation violated Schmidt's right to counsel.

The state courts' different conclusion was, in terms of § 2254(d)(1), an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. The Sixth Amendment, of course, guarantees the effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Cronic , 466 U.S. at 654, 104 S.Ct. 2039 ; McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

A lawyer can be constitutionally ineffective either because of the lawyer's own errors or because the government interferes with the lawyer's performance. Strickland , 466 U.S. at 687, 692, 104 S.Ct. 2052 ; Cronic , 466 U.S. at 658-60, 104 S.Ct. 2039 (categorizing circumstances when government interference with attorney performance violates Sixth Amendment and prejudice is presumed). Interference is what happened here, by judicially-enforced silence. 1.

The Presumption of Prejudice The government violates the Sixth Amendment when it interferes to such an extent that, "although counsel is available to assist the accused," the "likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct." Cronic , 466 U.S. at 659-60, 104 S.Ct. 2039. The Supreme Court has applied the presumption of prejudice to a wide variety of forms of interference with counsel at all stages of prosecutions.

And it has done so where the interference fell well short of what the majority calls a "complete" denial of counsel. As early as Powell v. Alabama , the Court held that "defendants were not accorded the right of counsel in any substantial sense" when the court appointed defense lawyers for the Scottsboro Boys but did so on the morning of trial, giving them no adequate time to prepare for trial. 287 U.S. at 57-58, 53 S.Ct. 55. In Ferguson v.

Georgia , the Court found unconstitutional a rule that prohibited defense counsel-though physically present at trial and assisting in all other portions of the trial-from directly examining a defendant who chose to speak in his own defense. 365 U.S. at 596, 81 S.Ct. 756. In Geders v. United States , the Court found that "an order preventing petitioner from consulting his counsel 'about anything' " overnight during trial "impinged upon his right to the assistance of counsel." 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). In Brooks v.

Tennessee , the Court held that a rule requiring a defendant to testify first or not at all deprived the accused of "the 'guiding hand of counsel' in the timing of this critical element of his defense." 406 U.S. 605, 612-13, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). In Herring v. New York , the Court held that complete denial of counsel's ability to offer a summation was "a denial of the basic right of the accused to make his defense." 422 U.S. at 859, 95 S.Ct. 2550. And in Holloway v.

Arkansas , the Court found that the "mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee" when the state refused to appoint counsel free o

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