*1 in CERCLA favored remand, generally we visions are on prioritized must be tors actions, v. States see United contribution CERCLA inappropriate. this is think (1st Davis, (quot of weighing selection the both places imposed by dis contingency provision ing sound discretion the factors equitable Coaters, Inc., court); v.Co. trict Acushnet court, court. appellate not the the district (D.Mass.1997); Boeing F.Supp. for these matters we leave Accordingly, F.Supp. Corp., 920 on Co. Cascade on its own to decide District Court the the (D.Or.1996), agree with and we dis- legal errors remand, by the unfettered spe the leave those cases. We wisdom of above. cussed to the discre provision of the design cific Declaratory Judgment Should Any D. Court, help the with the District tion of Contingency Provision. Contain con Beazer’s recognize parties. the We provision might use such Mead cern that sympathetic are Finally, we already will have issues that re-litigate the District Court’s contention Mead’s allocation equitable in the been decided parties’ the fixing declaratory judgment remand, but to be conducted proceeding response costs future shares equitable adequately be this concern can think the we authorizing provision contain a should ‘law of the by application addressed the District re-litigate parties future case’ doctrine.22 if new facts or allocation equitable inequi current division render events VI. Conclusion argues example, Mead For table. above, case phase we will investigatory stated the reasons
once For ensues, phase remedial of the District judgments and the concludes reverse allocation equitable for further this the District Court’s remand action any required if fair longer opinion. be this consistent with would proceedings exclusively di is “primarily remediation of the Site those areas
rected to majority of for the responsible is
Beazer contamination.” pro- allocation equitable
Because WILKERSON, Appellant conducted must be case ceeding this E. Melvin Court, the the District on remand again already entered declaratory judgment Attorney KLEM; General Edward If and when null and void. case is Pennsylvania. declaratory a new enters District No. 03-2842. costs, however, future covering judgment judgment Mead agree with we Appeals, States au- provision kind of contain some should Third Circuit. allo- re-litigate thorizing parties 14, 2004. Argued Dec. cause shown good of those costs cation 28, 2005. Filed: June Opinion or new evidence events response equi- reasonably upon the bear pro- contingency the allocation. Such ty of new evidence based on cause motions suggestion, contrary Beazer’s Finally, "not made 60(b) brought under that rule must insuf- Procedure Rule of Civil Federal judgment year” after one more than events if new protect Mead’s ficient entered. inequitable be- allocation the initial render
Mary Gibbons, Esq. Toms (Argued), River, NJ, for Appellant. Barker, P.
James Esq. (Argued), Fran- Chardo, cis T. Esq., Deputy District Attor- ney, PA, Harrisburg, for Appellee. AMBRO, Before: VAN ANTWERPEN STAPLETON, Circuit Judges. OF THE OPINION COURT STAPLETON, Judge. Circuit In this habeas corpus proceeding brought pursuant to 28 Ap- U.S.C. pellant Wilkerson claims that the state trial court wrongfully deprived him of his Sixth Amendment right to counsel. The District Court considered whether state court’s decision rejecting that claim to, contrary or an appli- of, cation Supreme Court precedent and concluded that it was not. agree We will affirm.
I. Wilkerson charged in Pennsylva- nia court with retail theft and robbery of a motor vehicle. At a March hear- ing, he informed the court that he wanted his current down,” counsel to “step and the by your standing Mr. Dils was when App. to withdraw. allowed side, need new you April set It then 42-43. him as and advised date Wilkerson’s
follows: up to- coming case was knew this You *3 Wilkerson, your Now, that’s Mr. attorney, an you needed day. You knew days. less than That’s date. apply didn’t why you I don’t know and 12 and April lawyer on a get can’t You for one. your handle how to know him to expect system, delay the to going We’re a get to You need day. next case the wit- inconvenience and delay justice, days so the next several lawyer within deciding in you fool around while nesses opportuni- an will have lawyer that that attorney or not. an get to Dis- discovery with engage to ty your any sense It doesn’t make case, in- your attorney, to evaluate trict you for on lawyer looking for family is witnesses, you, interview terview you’re time and at the same charge, one isn’t There of time. a lot takes in anoth- defender public for a applying much time. you afford counsel You can case. er trial on your proceed we will So can’t. family has your You or 13th. April the counsel, you should afford can’t you If lawyer within hire a get busy to Of- Defender’s the Public gone to days. several next the other. charge as well as this fice for if you tell to also ought I guess I under you’re qualify since you’d I think counsel, you private afford you can’t now, but right sentence prisoner a state services the free right to have the case taking this may, it we’re as be can’t you ifSo Office. Defender’s Public to trial. say by money, I would up come with at 52-53. App. week, better you’d this end of conviction, ap Wilkerson Following his right then Defender Public to the going of the Com Court Superior to pealed away. inter arguing Pennsylvania, monwealth at 45-46. App. to his been denied that he had alia affirmed, April on appeared Superior The counsel.
Wilkerson tried to be “forfeited” charges had for Wilkerson concluding counsel without view, attorney from In the although an court’s day, repre- was Com governed who Office Defender’s case Public Wilkerson’s happened Wentz, Pa.Super. charge another him on senting monwealth as had held (1980), advised it Wilkerson A.2d 796 present. to be process family that his court follows: he had lawyer, engage trying has been who “... a criminal they been success- whether yet heard trial, and of his of the date duly notified to trial proceed The decided
ful.
court
counsel
advised
obtain
has
who
been
Pub-
attorney from the
appointed
nevertheless,
who,
him and
represent
counsel
stand-by
as
Office
lic Defender’s
date
the scheduled
appears
self-representation.
in his
Wilkerson
assist
reasonable
and with
counsel
without
follows:
its decision
explained
The court
no con-
thereof
lack
for the
excuse
counsel
obtaining of
plans
crete
when we
you
very clear
made
to counsel.”
waived his
in March
case last term
this
continued
Wentz,
App. at
(quoting
421 A.2d at
indistinguishable from a decision of [the
800).
Superior
While the
quoted
Supreme] Court and nevertheless arrives
passage
from Wentz cast in terms of
at a result different from [Supreme Court]
“waiver,” it made clear that this was a case precedent.”
Id. at
Under
of the Antiter- unreasonably fails to extend such a rule to
rorism and Effective Death Penalty Act
a new context where it should apply may
(“AEDPA”),
2254(d)(1),
U.S.C.
habe- be deemed to have unreasonably applied
corpus
as
relief from a state conviction the correct
Williams,
rule.
granted
only if the state court
407,
at 150. Supreme Court conduct, predicted had for- we Fischetti, by his whether not forfeited to coun- hold Fischetti would Amendment his Sixth feited that, if indicated to counsel. -right We sel: conviction, we reviewing a federal we were a choice to make Here, refused Fischetti in not trial court erred that the rule coun- proceeding current between him forward with go the trial directing Effectively, pro se. proceeding sel and present his then represented being deni- trial court’s to defeat sought he counsel., stressed; however, We yet another motion al review- approach in permissible essence, court was not a the state court conviction: ing a state if he had waived him not as treated for- having attorney but as review were to his our rule habeas [I]f Goldberg, 67 F.Sd properly right. See if the state feited that determine examine therefore must general principles We extrapolated at 1101-01. “clearly Faretta, established” Patterson there whether can be derived on forfeiture Illinois, Court law [v. *5 (1988)], right to and Martinez 261 101 L.Ed.2d setting, we factual this different at Id. 150. court rul the state disagree with might issue, quick- we the thus defined Having ing. ruling court’s that the state ly concluded reviewing the not our role. That is clearly estab- ... “contrary to was not appli- courts’ state reasonableness the law Court within Supreme lished” we precedent, Supreme Court cation of 2254(d)(1): of 28 U.S.C. meaning the departure point as our must use established Court’s [T]he holdings of Court’s decisions. specific dealt with expressly has this area court the state assessing whether When counsel, which of forfeiture the matter refusing or reasonably applying acted we have here. As exact issue is the must be we precedent, that to apply voluntary waiv discussed, whether Su- that mindful issue Moreover, separate. conceptually are er a result law “dictated” preme Court decisions prior Court’s Supreme 301, 109 at case, Teague, U.S. 489 our “materi that are involved facts have not (plurality); 334 L.Ed.2d 103 S.Ct. facts from indistinguishable” ally 104-05, wheth- Moore, at see in this actions surrounding Fischetti’s here presented the circumstances er 406, 120 Williams, at 529 U.S. case. See to those “closely analogous” were Moore, 389; 1495, 146 L.Ed.2d S.Ct. high court earlier the basis of formed state It 107. follows F.3d at 314, 109 decisions, U.S. Penry, 492 contrary to was not here ruling court (internal '2934, 106 L.Ed.2d S.Ct. by decisions as articulated federal law omitted). and citations quotations Court. Id. at 150-51. Id. con- Fischetti analysis in our Once whether issue of turned to We then holdings” “specific fined unreasonably applied
the state (2000). See, California, e.g., Martinez 152, 161, 145 L.Ed.2d Court decisions and to asking whether the Supreme any those holdings “closely analogous” cir- guidance clear precise as to the stan- compelled cumstances a result contrary to dard to be applied before forfeiture can court, reached the state we could triggered. be Put another way, the Su- find preme Court fully has defined when fairly could be rendering cited as the state a defendant’s misconduct or defiance court’s decision unreasonable. We noted warrants a forfeiture. Our canvass of that “the [had ex- not] decisions of our own and sister courts pressly ruled out forfeiture of counsel.” reinforces our view that the state court Id. at 151. contrary, On the we observed order proceed Fischetti without Supreme'Court precedents, while counsel was not an objectively unrea- not dealing with forfeiture of the sonable application of Supreme counsel, provided conclude, a “basis to case law under the Sixth Amendment. did, state that defiant behavior Id. at 152. by a defendant can properly that de- cost Applying analysis fendant rationale of some his Sixth Amendment pro- case, Fischetti to this we reach if a similar necessary tections to permit a trial go conclusion. The precise presented forward issue in an orderly fashion.” Id. at 151 the state court in (citing Taylor States, case was whether a criminal defendant who (1974) has been duly L.Ed.2d 174 noti- fied of (holding that, trial, the date of his following who failure of the de- been fendant advised to obtain recess, to return counsel in “the trial sufficient time ready trial, could continue because the court’s who appears on power try ‘may case scheduled date not be without defeated counsel and *6 conduct of the with no prevents accused that reasonable excuse the for his failure to trial from going ”); have counsel present, forward’ and Illinois v. forfeits his Sixth Allen, 397 U.S. Amendment right to (1970) L.Ed.2d 353 that, (holding following- Turning to the first prong of disruptive behavior and after being 2254(d)(1), there is Supreme no Court warned aby judge, a defendant could be precedent dealing with the forfeiture of excluded from the courtroom to allow the counsel, and no prior of decision that trial to proceed)). We then went to Court involves facts “materially indistin note that “additional support for the rea- guishable” from presented those here. of sonableness the state court’s application Accordingly, the state court decision we of Supreme Court precedent” could be review is not “contrary to ... clearly es found in our own decisions and those of tablished” Supreme Court law. other Courts of Appeals. Id. at 151. We summarized that case law as follows: respect With to whether the decision we
None of these
approves
cases
review involves an
the
applica-
unreasonable
specific decision
tion
made
of clearly
the trial
Supreme
established
Court
law,
But
appellate
here.
the
emphasize,
do
we
cases
as did the Fischetti
establish that the Supreme
Court,
gen-
that “we must use as
point
our
of
eral right to counsel
departure
decisions are rea-
the specific holdings of the” Su-
sonably
qualified
read as
preme
the trial
Court.
Id. at 151. It remains true
court’s power to remedy abuse of that
that there are
Supreme
Court decisions
right through
Further,
forfeiture.
none
involving forfeiture of
the
to counsel
of these cited appellate cases saw in and a
no decisions providing any
fortiori
in
to a
principle
situation
that
to be
extended
to the “standard
guidance
clear
Ram
not have controlled.
it should
which
that]
concluded
can be
[it
applied before
156, 120 S.Ct.
Angelone,
dass v.
a forfei-
warrants
misconduct
defendant’s
(2000) (plurality
L.Ed.2d 125
necessarily follows
It
at 152.
Id.
ture.”
signifi
finds this
colleague
Our
opinion).
not
here was
decision
court’s
the state
view,
did
because,
Wilkerson
in his
cant
of
or,
misconduct”
any
in
“serious
engage
not
precedent.
Court
did
‘Wilkerson
because
specifically,
more
noted,
ap-
court of
While,
have
as we
Supreme Court
way
our
act in a
ulti-
to the
irrelevant
precedent
peals
of
finding of forfeiture
to a
leads
has held
here, as
us,
note that
before
we
mate issue
or
generally
constitutional
pro-
those cases
Fischetti,
a review
held leads
subsequently
have
lower courts
by taken
view
for the
a basis
vides
finding of forfeiture
to a
explained
We
in this case.
state
atOp.
Dissenting
specifically.”
Fischetti,
example:
461.
Goldberg, 67 F.3d
States
fact
ignores
analysis
dissent’s
The
Cir.1995),
explained that
(3d
we
extension doctrine
the unreasonable
to counsel
lose
could
“legal
specific
ato
requires reference
still
attorney or
assaulting
by physically
Gat
Supreme Court.”
from the
principle
able
(in
financially
the case
defen-
Cir.
Snyder,
tis v.
dant)
any counsel
refusing to retain
ex
2002).
No
apply
rule
We
place.
type
position
support
first
ists to
punish
defendants
in the dis
described
misconduct”
“serious
courts
con-
ability
preserve
aof
“necessary
find forfeiture
sent is
duct trials.
Dissenting Op.
right.”
Indeed,
colleague concedes
our
462.
v
v
4?
found
can be
forfeiture standard
no clear
interpreted
also
circuits have
Other
in the
be consis-
decisions
Id. at
courts.
appellate
of lower
decisions
right to coun-
forfeiture of
tent with
on, however,
ex
goes
dissent
interpreted
cases
sel. These
*7
court
circuit
forfeiture
press the belief
go
trial
defendants
require
law to
from
factors
“contain common
decisions
have failed
they
when
unrepresented
that the
gleaned
principle
can
which
time,
a reasonable
within
hire counsel
find a
will not
appellate courts
federal
Bauer,
F.2d 693
v.
States
United
be
defiant
absent a defendant’s
forfeiture
v.
(7th Cir.1992);
Mitch-
States
United
added).
(emphasis
....” Id.
havior
Cir.1985).
(5th
ell,
from
glean
could
if this Court
Even
added).
146,152 (emphasis
Id. at
serious
precedents a
court
circuit
federal
correct-
writing in dissent
does
colleague
which
Our
standard
forfeiture
misconduct
in this
applica-
behavior
that the “unreasonable
encompass Wilkerson’s
ly observes
not
2254(d)(1)
conclusion
compel
authorizes
case,
that does
segment
tion”
“if,
finding was
judgment
forfeiture
from a state
state court’s
relief
that the
habeas
application
[Supreme Court]
unreasonable
objectively
clearly established
under
section
under
precedent
in Supreme Court
law,
unreasonable
state
stan-
forfeiture
no clear
Because
legal
princi-
governing
refusing to extend
by the
articulated
been
principle
dard has
context
which
ple to a
state
Court,
said
cannot be
unreasonably
controlled”
should
court in this case acted
when
unreasonably
disruption
trial
presented here and in
forfeiture,
it found
even though Wilker- Fischetti. Whether there is such a materi-
son’s
fell short
actions
of the sort of “ex-
al difference might present a litigable is-
tremely serious misconduct” that
sue—one on which reasonable minds could
present
found
in United
v.
States
differ, but that would be
only
relevant
Leggett,
Cir.1998),
As
Fischetti,
we stressed in
“forfeiture
erson forfeited his right to
counsel—was
voluntary waiver are conceptually sep-
an unreasonable
arate,”
and the
dissent’s waiver
on
are
forfeiture of
point.
beside the
constitu-
Allen
Taylor
rights.
tional
I
are of
believe that the
interest
state court
to the
they
extent
recognize
unreasonably
that a
criminal
extended
Court’s forfei-
forfeit other
ture precedent
important
to Wilkerson’s
case instead
by engag-
ing
applying
the appropriate analytical
conduct that has the
ru-
potential of
“prevent[ing]
waiver of
for-
going
bric—
Fischetti,
ward.”
therefore respectfully
chetti. Precedent They certainly do not compel a *8 that conclusion a trial judge must abort a If determine, we case, as we in have this scheduled trial under the presented facts that a state court decision is not contrary here. to applicable Supreme Court precedent, respect With to whether or not we the state must “advance to the second step in the court could reasonably apply the Supreme analysis [habeas ] the state court —whether Court’s forfeiture analysis from Allen and decision was based on an ‘unreasonable Taylor case, Wilkerson’s we perceive no application of Supreme prece- Court ”3 material difference between the potential dent.’ Hendricks, v. 366 F.3d Affinito 3. We previously emphasized have of” provisions 2254(d)(1) § of 28 U.S.C. must "contrary to” and application "unreasonable given independent meaning. Werts v.
457 Cir.2002) (3d that the (noting Werts, 2 Cir.2004) 228 (3d (quoting 252, 257 “ specifically not but ‘if the did Court discussed 196). is met prong This at F.3d legal principle” of governing “extension correct endorse the identifies court state Williams); Fischetti v. John Court’s Supreme] in approach from [the legal principle Cir.2004) (stat (3d applies unreasonably son, 140, 148 F.3d 384 decision but prisoner’s fully of has the facts not “Supreme Court principle ing -that the ” Williams, at U.S. 529 (quoting legal princi Id. of case.’ this- ‘extension fleshed out 1495). majority As the 413, 120 S.Ct. ple’ approach”). states, court decision a state opinion decided, how- was Williams after Soon appli- unreasonable to be an found
also be gov- ever, Kennedy articulated Justice if “the precedent of cation unrea- analyzing the erning principles a extends unreasonably court either state 2254(d)(1) §of prong application sonable from legal principle may be determination “A state and stated: it should where new to a context if, under this standard aside under set fails to extend unreasonably or apply not law, state clearly established it where context principle to extend refusing in unreasonable 278 F.3d Snyder, v. Gattis apply.” should to a context legal principle governing Cir.2002) (3d (citing 228, 222, 234 have con- should 1495). principle which 407, 120 Williams, S.Ct. 529 U.S. Angelone, v. Ramdass trolled.” or “failure extension” The “unreasonable 2113, 166, 147 L.Ed.2d unreasonable to the approach to extend” (2000) Our Court opinion). (plurality 2254(d)(1) § 28 U.S.C. of prong application since have of our sister Circuits all one by the Su- out fully fleshed not been held—that expressly indicated —or stated Court. preme approach legal principle” “extension though “per- approach, this Williams application prong the unreasonable some correctf,] ... does haps ][ analysis. mode of is a viable inquiry habeas further and noted precision,”4 problems F.3d See, Vaughn, 398 v. e.g., Brinson how “to decide required it “ Cir.2005) (3d ‘a state (stating that cases legal principle’ ‘extension such appli- ‘unreasonable fails the decision court 2254(d)(1).” under treated should be the state ... if ... prong cation’ (discuss- 408-09,120 U.S. at princi- legal unreasonably extends either to the approach Circuit’s ing the Fourth from the ple see also inquiry); application unreasonable apply it should a new context Hendricks, 51 n. Marshall a new legal principle) to (not- apply a failure to Vaughn, 228 hand, Indeed, in some one Justice on the a focus of point was context. ing opinion distinguish a deci- plurality portion hard to will be O’Connor’s cases it 362, 120 S.Ct. Taylor, involving Williams extension an unreasonable sion (2000)). L.Ed.2d 389 involving a decision legal principle facts. of law to an unreasonable in- precision” "problems of Regarding the hand, many same other On the O'Connor approach, Justice in this herent distinguish a be difficult it will also cases wrote: exten- involving decision to distin- difficult is sometimes Just *9 a decision a.legal principle from sion question law fact from guish a mixed opposite to that at a conclusion that arrives fact, difficult will often be question of a question of law. by this Court reached deci- state-court identify separately those 408, Williams, 1495 120 at 529 U.S. applica- unreasonable that involve an sions omitted). (internal (or quotation legal principle unreasonable tion of 458
unreasonably refuses to
princi
extend the
approach
extension”
that has been oft-stat-
ple to a
(but
new context where it should ap
used)
ed
little
our Court and the
”
ply.’
(quoting
Leftridg
Rico v.
e-Byrd, 340 other
Appeal because,
Courts of
in my
178, 181 (3d Cir.2003) (internal
F.3d
quota
view, the Commonwealth court here unrea-
omitted)));
Frank,
tion
Gibbs v.
387 F.3d
sonably extended principles from the Su-
268, 272,
(3d Cir.2004) (same);
275
see also
preme Court’s forfeiture precedents to a
Coalter,
74,
(1st
Jackson v.
337 F.3d
81
new context
they
should not ap-
Cir.2003) (same);
Miller,
Kennaugh v.
289 ply ie., a situation where the defendant
—
(2d Cir.2002)
36,
F.3d
45
(noting that
had not engaged
any
serious misconduct
Williams
Ramdass left open
ques
disruption
proceedings. The Su-
tion whether a state court’s failure to ex
preme
that,
Court has
held
twice
certain
clearly
tend
established Supreme situations, a criminal
forfeit
precedent could constitute an unreason
rights.
Allen,
See Illinois v.
able application of clearly established fed
337,
397 U.S.
1057,
90 S.Ct.
nett v.
681,
(6th
393 F.3d
686
Court held
defen
Cir.2005) (same);
dant who
Frank,
had repeatedly
Owens
engaged
in un
(7th
490,
F.3d
(same);
ruly behavior
his
during
trial (including
Purkett,
Moore v.
685,
(8th
275 F.3d
threatening
to turn the judge into a
Cir.2001) (same);
Cambra,
Kesser v.
“corpse”
and making other abusive re
327,
(9th Cir.2004)
(same);
marks,
Car
throwing
attorney’s
files on the
Ward,
(10th
ter v.
860,
347 F.3d
floor,
Cir.
and arguing
the judge),
despite
2003) (same); but see Hawkins v. Ala warnings from the judge that such behav
bama,
1307 & n.
1309 ior would result in the defendant’s removal
(11th Cir.2003) (holding that
question
“the
courtroom,
had “lost his Sixth
of when a state court’s refusal to extend a
and Fourteenth
Amendment
to be
legal principle
constitute,
would
under
present throughout his trial.” 397
at
AEDPA, an
of 339-40, 346,
States v. Goldberg, 67
1092
F.3d
Cir.
fendants to proceed to
unrepresented
trial
1995), we surveyed Supreme Court and when they “requested [a]
continuance
appellate precedent
federal
regarding for
bad faith and for the purpose
delay”
and
feiture, particularly forfeiture of
right
when one defendant attempted “to manip-
counsel,
to
and found that “because of the
ulate the court’s
by retaining an
schedule
drastic
sanction,
nature of the
attorney
conflict.”).
he knew to have a
appear
would
require
to
extremely dilatory
I recognize that in Fischetti we charac-
conduct.”
at 1101.
Id.
applied
We later
terized
the above
(specifically
this standard in United States v. Leggett,
McLeod,
Leggett,
Bauer,
Mitchell)
and
(3d Cir.1998),
view that decisions of federal courts below the
lished
precedent.” Fischetti,
level of the
United States
tional
of
held
subsequently
have
courts
that,
review, we
in habeas
recognize
the
of forfeiture
finding
ato
leads
under re-
the state decision
look at
must
facts of
The
specifically.
to counsel
compare it
and
specificity
some
view with
majority
in the
aptly summarized
case are
the
to
related
precedent
to
Court
Supreme
only
that the
They demonstrate
opinion.
of the case
setting
factual
particular
that could
part
on Wilkerson’s
conduct
majority hold
in the
My colleagues
issue.
as “defiant
conceivably be characterized
prec-
Court
that the existence of
failure
“misconduct”
behavior”
of constitutional
regarding forfeiture
edent
he
trial date as
by his
to secure
more
the
rights precludes
judge.
by the trial
to do
was instructed
regard-
precedent
Supreme Court
general
in
rec-
however,
the
is,
no evidence
There
counsel and
right to
fundamental
ing the
(other
speculation
pure
than
ord
However, a corol-
right.
of that
waivers
to obtain
failed
judge)
trial
Wilkerson
Pennsylva-
that the
lary my conclusion
in a deliberate
attorney by that date
current
unreasonably extended
nia court
pro-
manipulate
trial or
delay the
effort to
is
case
precedent Wilkerson’s
forfeiture
contrary,
way. To
any
ceedings
proper
were not the
that those
to the trial
represented
Wilkerson
touchstone for
Commonwealth
of ob-
process
in the
family was
that his
Wilk-
determining whether
when
consider
had
him and that this
for
taining counsel
at trial
self-representation
forced
erson’s
was difficult
delayed
because
been
of his
a violation
constituted
The
prison.
phone calls
him to make
Rather,
that the Com-
I believe
rights.
attempt-
that Wilkerson
record shows
Su-
applied
court should
monwealth
order, not
judge’s
with the
ing
comply
regarding waivers
precedent
preme
defy
it.
seeking
right to counsel.
of the
facts, I
conclude
of these
light
In
held
Supreme Court has
The
ex-
unreasonably
Pennsylvania court
fundamental,
Gideon
to counsel
clearly established
tended
335, 343, 83 S.Ct.
Wainwright, 372 U.S.
of constitution-
the forfeiture
on
precedent
(1963),
long
has
792,
799
L.Ed.2d
it should
a context which
al
every rea
indulge
that “courts
recognized
there is
in which
a situation
apply ie.,—
of con
against waiver
presumption
sonable
on Wilkerson’s
any misconduct
evidence
presume
... do
rights and
stitutional
not spoken
has
Although the Court
part.
of fundamental
in the loss
acquiescence
right to coun-
directly
458,
Zerbst,
U.S.
rights.” Johnson
appellate
sel,
survey of federal
the above
(1938)
L.Ed. 1461
the lower federal
case law reveals
omitted).
(internal quotation
interpreted
courts have
requires
therefore
general forfeiture
Court’s more
not himself
need
a defendant
“[although
only to situations
being applicable
lawyer
of a
experience
skill
have the
actively engaged
the defendant
intelligently
competently
order
Su-
types of misconduct.
in certain
should
he
self-representation,
choose
cases themselves —Allen
preme Court
disadvan
dangers and
made aware
who
en-
defendants
Taylor—involved
so
self-representation,
tages
Hence
misconduct.
gaged
serious
,will
record
establish that he
what
knows
upholding
decision,
judge’s
doing
Pennsylvania court,
he is
and his
choice will be
far
made
from indulg-
ing every
eyes
reasonable
open.”
presumption against
California,
Faretta v.
waiver, leapt to the
conclusion that
Wilk-
erson had forfeited
(1975) (internal
L.Ed.2d 562
quotation
That
only
decision was not
an unreason-
omitted);
Tovar,
see also Iowa v.
*13
able extension of
precedent
forfeiture
77, 81,
that Wilkerson understood the conse-
quences any waiver, violated his consti-
tutional to counsel.